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how can a patient file a small claims medical malpractice claim?

Answered by:Personal Injury Pro
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how can a patient file a small claims medical malpractice claim? how can this be adjudicated in small claims? Doesn't the plaintiff need an "expert" witness to state what the breach of duty or breach of standard of care is? I am an ob/gyn who placed an IUD in a patient after proper informed consent. She returned for routine check of the IUD in 4 weeks. Everything was documented as normal. She then over about one year had several visits for "discharge" and "pain". I attempted to remove the IUD which sometimes cannot be done in the office. She needed to be scheduled for a simple out patient D&C and hysteroscopy to remove the IUD. She did not come back, we called her and she did not return the messages. She went to another doctor for the surgery which was successful. Now she wants $7500 for her surgical costs. How can this possibly be done in small claims?? I had documented standard of care consent and the procedure. Should I bring my own "expert/"

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Country relating to Question: United States
State (if USA): California

Already Tried:
how can medical malpractice be adjudicated in small claims court. The patient states I put in the IUD incorrectly. Wouldn't she need an expert to properly testify of breach of standard of care?

Submitted: 284 days and 14 hours ago.

Category: Personal Injury Law

Value: $69

Status: CLOSED

Accepted Answer

Expert: Personal Injury Pro replied 284 days and 14 hours ago.

LADYLAWYER : Hello, Thanks for choosing Justanswer.com! I look forward to helping you with legal information today.

LADYLAWYER : Medical malpractice claims require expert testimony in front of a jury. This is not possible in small claims court. Also, CA law provides for parties to go to arbitration before a medical malpractice claim goes to trial. This would not be possible under the small claims court system. You need to try to get the case dismissed or transferred to the trial court system.

LADYLAWYER : Hi, you there?

Customer :

she has already filled the claim, but not served me properly. if i dont show, wont the judge just award her the amount? how would i get it dismissed?

LADYLAWYER : Yes, the judge would. You have to make the proper motion here. You can use this form: http://www.courts.ca.gov/documents/sc105.pdf

Customer :

she just sent a certified letter from her own address, not from the court. Does her improper service matter. Doesn't she have to serve properly?

LADYLAWYER : The judge knows nothing unless you tell them what is going on. Otherwise, she or he will just follow technical procedure. So you need to make the motion asking for a dismissal of the case based on lack of subject matter jurisdiction or, in the alternative, you can also request to quash the service since she did not serve you properly.

LADYLAWYER : Your first choice is to get the matter dismissed. But your second choice would be to quash service.

LADYLAWYER : You can ask for both in the motion so that if the judge doesn't do one, s/he still has an option to do the other.

Customer :

ok, i will file the form you mentioned.

what is the likelihood of my successful counter suing for my time and or cost of further counsel?

LADYLAWYER : CA does allow service by mail and the individual can mail it themselves, but only if a copy of the summons and of the complaint cannot with reasonable diligence be personally delivered to the person to be served as specified in Section 416.60, 416.70, 416.80, or 416.90 § 413.10 as depicted below.Except as otherwise provided by statute, a summons shall be served on a person:Within this state, as provided in this chapter.Outside this state but within the United States, as provided in this chapter or as prescribed by the law of the place where the person is served.Outside the United States, as provided in this chapter or as directed by the court in which the action is pending, or, if the court before or after service finds that the service is reasonably calculated to give actual notice, as prescribed by the law of the place where the person is served or as directed by the foreign authority in response to a letter rogatory. These rules are subject to the provisions of the Convention on the “Service Abroad of Judicial and Extrajudicial Documents” in Civil or Commercial Matters (Hague Service Convention). (Amended by Stats. 1984, Ch. 191, Sec. 1.)§ 413.20 If a summons is served by mail pursuant to this chapter, the provisions of Section 1013 that extend the time for exercising a right or doing an act shall not extend any time specified in this title. (Added by Stats. 1969, Ch. 1610.)§ 413.30 Where no provision is made in this chapter or other law for the service of summons, the court in which the action is pending may direct that summons be served in a manner which is reasonably calculated to give actual notice to the party to be served and that proof of such service be made as prescribed by the court. (Added by Stats. 1969, Ch. 1610.)§ 413.40 Any service of summons which complies with the provisions of this chapter shall not be rendered invalid or ineffective because it was made by a person in violation of Chapter 16 (commencing with Section 22350 Bus. & Prof.) of Division 8 of the Business and Professions Code. (Added by Stats. 1971, Ch. 1661.)§ 414.10 A summons may be served by any person who is at least 18 years of age and not a party to the action. (Added by Stats. 1969, Ch. 1610.)§ 415.10 A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served. Service of a summons in this manner is deemed complete at the time of such delivery. The date upon which personal delivery is made shall be entered on or affixed to the face of the copy of the summons at the time of its delivery. However, service of a summons without such date shall be valid and effective. (Amended by Stats. 1976, Ch. 789.)§ 415.20In lieu of personal delivery of a copy of the summons and of the complaint to the person to be served as specified in Section 416.10, 416.20, 416. 30, 416.40, or 416.50, a summons may be served by leaving a copy of the summons and of the complaint during usual office hours in his or her office with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served at the place where a copy of the summons and of the complaint were left. Service of a summons in this manner is deemed complete on the 10th day after such mailing.If a copy of the summons and of the complaint cannot with reasonable diligence be personally delivered to the person to be served as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and of the complaint at such person’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served at the place where a copy of the summons and of the complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing. (Amended by Stats. 1989, Ch. 1416, Sec. 15.)

LADYLAWYER : But again, serving you properly is not as important as asking for a complete dismissal. You would rather get the whole thing dismissed. Otherwise, if you just get the summons quashed, she can go back and serve it to you properly and the lawsuit proceeds.

Personal Injury Pro : I saw your status said typing for quite a while. I am happy to help you on any more questions you should have regarding this matter.

Customer :

thank you

Personal Injury Pro : I still see that you are typing but that doesn't always mean that you are. Did you have any further questions for me at this time?

Personal Injury Pro : If not, please don't forget to rate my answer before exiting the chat as it is the only way I can receive credit for helping you. Thank you!

Personal Injury Pro : It has been a little while since I heard from you and am going to have to step out of the chat to help other customers that are waiting, but if you need anything further, please just reply to me and I will be alerted that you need more help. Thank you!

Customer :