Los Angeles & Orange County Malpractice Defense
Malpractice can be committed by any professional but most often is committed by a medical professional or an attorney.
Attorney Malpractice Overview:
Attorney Malpractice in Los Angeles or Orange County occurs when an attorney commits and act which is negligent or grossly negligent. Attorney malpractice can occur even if you were not part of a lawsuit and were merely relying on the attorney for advice.
Attorney malpractice based upon gross negligence is malpractice of an egregious sort such as would be evident if the attorney missed a deadline or allowed the statute of limitations to run beyond the date in which you could file your claim. Similarly, and more common but less obvious in nature is malpractice as a result of negligence. Negligence is evident if the attorney’s error caused harm or prevented you from pursuing a lawsuit or a particular cause of action.
Attorney malpractice as a result of negligence would also be evident if the attorney failed to conduct a thorough discovery on your behalf and thereby missed crucial evidence which would have assisted in proving your case. Attorney malpractice could also include negligence errors committed during trial such as failures to object when appropriate, failure to make the appropriate objection, failure to present evidence, failure to properly question witnesses or a general lack of preparation which is evident based on the transcript of the proceedings.
Attorney malpractice can also be established by proof that the attorney filed documents on your behalf which included erroneous legal arguments, or which fail to set forth the relevant legal standard with particularity.
The Statute of Limitations for filing an attorney malpractice claim are set forth under Cal Code Civ Proc § 340.6 as follows:
(a) An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first. If the plaintiff is required to establish his or her factual innocence for an underlying criminal charge as an element of his or her claim, the action shall be commenced within two years after the plaintiff achieves post-conviction exoneration in the form of a final judicial disposition of the criminal case. Except for a claim for which the plaintiff is required to establish his or her factual innocence, in no event shall the time for commencement of legal action exceed four years except that the period shall be tolled during the time that any of the following exist:
(1) The plaintiff has not sustained actual injury.
(2) The attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred.
(3) The attorney willfully conceals the facts constituting the wrongful act or omission when such facts are known to the attorney, except that this subdivision shall toll only the four-year limitation.
(4) The plaintiff is under a legal or physical disability which restricts the plaintiff’s ability to commence legal action.
(b) In an action based upon an instrument in writing, the effective date of which depends upon some act or event of the future, the period of limitations provided for by this section shall commence to run upon the occurrence of that act or event. (Cal Code Civ Proc § 340.6)
Medical Malpractice Overview:
Medical Malpractice like attorney malpractice would typically be due to the medical professional’s negligence or gross negligence which causes harm that would not have resulted if it were not for the negligence.
Medical malpractice due to gross negligence would be evident if a doctor failed to timely diagnose a life-threatening condition such as cancer, heart disease or diabetes. Medical malpractice may also include negligent errors committed by the doctor, nurses or other staff during or after surgery or other critical care. Medical malpractice includes includes injuries suffered at a hospital, nursing home or other elder care facility.
Key questions that will need to be answered when you call the Law Office of Sam Walker for a free fifteen-minute telephone consultation are 1) Where did the medical malpractice occur and what medical professionals were present, 2) When did the medical malpractice occur, 3) What injury was caused by the medical professional or institutions medical malpractice, 4) Have you been seen by another doctor regarding your medical malpractice injury that has informed you that medical malpractice has occurred 5) And if applicable what were the side effects and or possible outcomes that were discussed with you before your surgery or other visitation with the medical facility.
The Statute of Limitations for filing an action against a medical professional are set forth under Cal Code Civ Proc § 340.5 as follows:
In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.
In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person. Actions by a minor shall be commenced within three years from the date of the alleged wrongful act except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period. Such time limitation shall be tolled for minors for any period during which parent or guardian and defendant’s insurer or health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor for professional negligence.
For the purposes of this section:
(1) “Health care provider” means any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code. “Health care provider” includes the legal representatives of a health care provider;
(2) “Professional negligence” means a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.
(Cal Code Civ Proc § 340.5)
In addition to the one year Statute of Limitations the following requirements are necessary before initiating an action against a medical professional as set forth by California Code of Civil Procedure Section 364, “No action based upon the health care provider’s professional negligence may be commenced unless the defendant has been given at least 90 days’ prior notice of the intention to commence the action.”
Common to both attorney malpractice and medical malpractice is the need to prove the negligence of the attorney or medical professional. In order to prove your case you will need an expert witness from either the legal field or medical field to testify on your behalf and or issue a written opinion describing the level of negligence and the harm caused. If you believe that you are the victim of either attorney malpractice or medical malpractice you should contact the Law Office of Sam Walker immediately.
Both attorney malpractice and medical malpractice claims must be filed within one year of discovery of the injury and any failure to do so will result in a legal bar to filing your complaint and compensation for your injury.
Our Approach to Malpractice:
At the Law Office of Sam Walker, we provide zealous representation in a caring individualized manner. Your attorney will be available to you directly and you will not be forced to call a secretary or paralegal with your questions. You will have direct access to the attorney who will be handling your case throughout your malpractice matter. If you have any questions your attorney will respond to your call within 24 hours.
Counties We Represent:
Los Angeles County, Orange County and surrounding.