A substantial part of Moore McLennan's practice is the defense of medical malpractice cases against physicians, medical groups and hospitals, as well as the individual health care providers employed by the groups and hospitals.
We are recognized for our expertise in defending medical malpractice cases in all areas of medicine, including anesthesia, emergency medicine, orthopedic surgery, general surgery, plastic surgery, psychiatry, neurology, neurosurgery, ophthalmology, obstetrics, gynecology, pediatrics, ENT, dermatology, neonatology, internal medicine, family practice, urgent care, diagnostic and interventional radiology/cardiology, endovascular medicine, neuroradiology, general radiology, oncology and pathology.
We represent medical doctors, doctors of osteopathy, physician assistants, registered nurses, nurse practitioners and physical therapists, as well as hospitals, transitional care facilities and skilled care facilities.
Our clients rely on us to employ innovative and aggressive legal strategies in representing their interests. Moore McLennan provides large firm quality with small firm personalized service. We are a litigation firm, dedicated to providing our clients with result-oriented and cost-effective representation. We provide informed advice and employ strategies to limit unnecessary risk. Should a client choose to take the case to trial, we have the resources, experience and talent to allow the client to do so with confidence.
If you are already a client, we welcome you to our website. If you are looking for legal representation, we invite you to contact any of the attorneys at our firm to discuss your questions or concerns.
Ordinary negligence by a health care provider, or professional negligence, is when the health care provider's acts and/or omissions constitute a departure from "good and accepted medical practice" in the treatment of a patient. A health care provider may be found to have departed from accepted medical practice if he/she fails to treat the patient within the standard of care in the community for that health care provider's particular area of practice.
The jury instruction most often given to a California jury in a medical negligence case is CACI 502, which states as follows:
A [insert type of medical specialist] is negligent if [he/she] fails to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful [insert type of medical specialists] would use in similar circumstances. This level of skill, knowledge, and care is sometimes referred to as "the standard of care."
[You must determine the level of skill, knowledge, and care that other reasonably careful [insert type of medical specialists] would use in similar circumstances based only on the testimony of the expert witnesses [including [name of defendant]] who have testified in this case.]
Medical specialists are "held to that standard of learning and skill normally possessed by such specialists in the same or similar locality under the same or similar circumstances." (Quintal v. Laurel Grove Hospital (1964) 62 Cal.2d 154, 159-160.)
A California jury is instructed on the definition of medical negligence, as set forth in CACI 505, as follows:
A [insert type of medical practitioner] is not necessarily negligent just because [his/her] efforts are unsuccessful or [he/she] makes an error that was reasonable under the circumstances. A [insert type of medical practitioner] is negligent only if [he/she] was not as skillful, knowledgeable, or careful as other reasonable [insert type of medical practitioners] would have been in similar circumstances.
Likewise, a health care provider is not necessarily negligent just because he/she chooses one medically accepted method of treatment or diagnosis and it turns out that another medically accepted method would have been a better choice. (CACI 506) "A difference of medical opinion concerning the desirability of one particular medical procedure over another does not . . . establish that the determination to use one of the procedures was negligent." (Clemens v. Regents of Univ. of California (1970) 8 Cal.App.3d 1, 13.)
"Medicine is not a field of absolutes. There is not ordinarily only one correct route to be followed at any given time. There is always the need for professional judgment as to what course of conduct would be most appropriate with regard to the patient's condition." (Barton v. Owen (1977) 71 Cal.App.3d 484, 501-502.)
Being named as a defendant in a medical malpractice lawsuit is something that a health care provider never wants to have happen. If you have insurance, your malpractice insurance company and the company assigns your defense to a law firm and your legal bills are paid by the insurance company. However, if you are a physician who did not buy the "tail" of your Claims Made Medical Malpractice Insurance Policy, you may face paying very large sums to defend yourself in malpractice litigation and to pay the cost of any settlement or adverse judgment.
For physicians, this situation happens most often when the doctor, who has a "claims made" type of insurance policy, retires and decides not to buy the "tail" of the insurance coverage. This "tail" is the coverage that will be provided to the doctor for all litigation brought after the doctor retires. In some cases, however, the doctor feels that his/her workload was truly minimal for the last two or three years of practice and that there were really no situations which could possibly lead to a malpractice suit. Therefore, why pay perhaps $100,000 for a "tail" that will never be needed. Unfortunately, what often occurs is that shortly after making the decision not to purchase the "tail", the process server appears at the door with a lawsuit.
What to do? The first thing to do is send the lawsuit or notice of a possible lawsuit to your former insurance carrier or to your last employer's insurance carrier. There are instances when the carrier might have to provide you a defense even if you did not purchase the tail or you are no longer working for the employer who provided coverage. The insurance company may even settle the case on your behalf. However, you might be legally liable to repay the insurance company. In that situation you require experienced legal advice to navigate those waters.
In some situations, the insurance company is under no legal obligation to defend the claim. If that is the case, you will be on your own. In those instances the first thing you must do is contact an experienced medical malpractice defense attorney to defend you. You will have to pay for this defense, but that is certainly preferable to disregarding the issue because that will only end up with a default judgment entered against you which in turn will greatly increase the legal cost to you to get out of that situation.
Please be sure the lawyer you do retain is experienced in medical malpractice defense. Do not employ your business lawyer who handled your real estate transaction, the one who handled your friend's divorce or the one who prepared your will. Medical malpractice is a true specialty and your interests will be best served by retaining someone who does this type of work on a daily basis. Meet with your medical malpractice attorney early into the litigation, so that you can explore the options available to you and formulate an exit strategy to resolve this matter as quickly and inexpensively as possible.
The attorneys of Moore McLennan, LLP have more than 100 years in their collective representation of physicians and other health care providers. We have the experience and expertise required in this type of litigation.
In this day of ever-increasing litigation, healthcare providers sometimes find themselves in the regrettable position of having to defend against allegations of dependent adult or elder abuse. While judges and juries might be eager to punish those who abuse helpless elderly or dependent patients, it is possible for you to stage a sound defense against dependent-adult and elder abuse charges.
Having experienced and knowledgeable attorneys helping you navigate and successfully defend these very serious charges is absolutely essential, since an adverse judgment can involve punitive damages. There is no insurance coverage which can legally pay for punitive damages, leaving the healthcare provider to pay these enormous fees out of their personal accounts which, in some instances, can lead to bankruptcy. What constitutes dependent-adult or elder abuse? The California legislature defined it as being "either (a) physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering OR (b) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering." (.)
A "dependent adult" is "any person between the ages of 18 and 64 years who resides in this state and who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age. (Welfare & Institutions Code section 15610.23.) "Elder abuse" pertains to the same acts or omissions directed toward any individual who is 65 years of age, or older. (Welfare & Institutions Code section 15610.23.)
The California Supreme Court has held that actions under the Elder Abuse Act arise not from the alleged negligence of medical providers, but from the failure of those responsible for attending to the basic needs of the patient to carry out their custodial obligations. (Covenant Care v. Superior Court (2004) 32 Cal.4th 771.) Distinguishing between alleged negligence of a healthcare provider and elder/dependent adult abuse is critical to successfully defending the claim. Aggressive attacks on the pleadings from the outset are essential. Knowing what discovery to conduct, as well as the legal defenses to employ in this highly specialized area of law, make all the difference. Moore McLennan has significant experience defending claims of elder and dependent care abuse.
Moore McLennan has in-depth experience in the representation of public entities. Knowing the unique ins and outs of this area of law requires special expertise. Our clients include health care districts, their associated hospitals and County medical centers, as well as the employees of these institutions.
A disciplinary sanction by one's licensing Board after an investigation or trial can have serious consequences for the licensed health care provider, including loss of license, probation or letter of reprimand. The law firm of Moore McLennan has attorneys specializing in the representation of physicians, nurses and other licensed health care providers in Administrative Board investigations and proceedings. These include the Medical Board of California and the Board of Registered Nursing, as well as any other Board which licenses health care providers.
The claims against the health care providers vary widely but include such allegations as gross negligence, repeated acts of simple negligence, fraud, substance abuse and mental/physical incompetence to practice.
Some health care providers have a rider on the policies of professional liability insurance which pay some of the legal fees associated with the defense of administrative licensing Board matters, which can be quite costly. Other providers do not have such coverage and the practitioner must incur these fees personally. It is highly recommended that any health care provider facing a Board inquiry obtain experienced legal counsel from the very beginning.
Keep in mind that the Board has access to your patient care records and will likely have interviewed other individuals behind the scenes to acquire information about you and the facts of the case before you appear for the initial interview.
There are ways to avoid, or at least minimize the sanctions by the licensing Boards. Suffice it to say that preparation must be thorough and done realistically. It is not a good idea to walk into a Board interview with the idea that you can do it yourself, or that it will be easy or without some risk. You must understand what the process is, who you are dealing with and have a well-prepared plan on how to present your side of the facts to the Board. The attorneys of Moore McLennan understand the process and have experience in defending licensed health care providers in Board actions.
Moore McLennan represents hospitals in other Administrative matters, such as those facing fines imposed by the Department of Health Services. In this age of ever-increasing administrative scrutiny, having the right attorneys to represent you is of critical importance.
Medical Staff investigations can lead to formal recommendations for adverse action, ultimately leading to the filing of a Business & Professions Code section 805 report with the Medical Board of California. This, in turn, frequently triggers a separate investigation by the Board.
A physician (or physician's assistant) should never underestimate the gravity of a peer review action by his/her Medical Staff, since the stakes are far too high. Such an action can lead to the restriction or outright loss of one's Medical Staff clinical privileges and membership. There are precise time deadlines associated with any peer review action and specific requirements which must be met. Knowing how to navigate through the maze of rules and laws is essential.
It is critical that any physician facing a Medical Staff peer review investigation, restriction of privileges or summary suspension have the immediate representation of experienced counsel in this highly specialized area of the law. The law firm of Moore McLennan has attorneys who represent physicians and physician assistants in peer review matters. The firm also shares an "Of Counsel" arrangement with the firm of Curtis & Green, adding to its depth of expertise.
Moore McLennan represents Medical Staffs of some of the hospitals in California. Our attorneys have experience in drafting/modifying Bylaws, as well as assisting the Medical Staffs in working with its members to find solutions to problems when they arise.