Medical Malpractice FAQ — Law Office of Mark Birmingham

Question 1

How do I know if what happened to me is malpractice?

Accepted Answer

The core question is whether your provider failed to meet the accepted standard of care — meaning, whether a reasonably competent doctor or hospital would have acted differently under the same circumstances. A bad outcome alone is not malpractice. Medicine involves risk, and patients can suffer serious harm even when care is delivered properly. What matters is whether the care itself was negligent. The only way to know for certain is to have an experienced attorney review the facts.

Question 2

My doctor said the complication was a known risk. Does that mean I have no case?

Accepted Answer

Not necessarily. Informed consent — being told about risks — does not protect a provider from liability if the care itself was negligent. If the complication occurred because of a mistake rather than the inherent risk of the procedure, you may still have a valid claim. These situations require careful analysis.

Question 3

What if the hospital or doctor apologized? Does that help my case?

Accepted Answer

California has an apology law that generally prevents a provider's expression of sympathy from being used as an admission of liability. However, an apology can still be relevant context. More importantly, it does not affect whether you have a valid claim — that depends on the medical facts, not the provider's words afterward.

Question 4

Can I bring a claim if a family member died because of medical negligence?

Accepted Answer

Yes. California law allows surviving family members to bring a wrongful death claim when a patient dies as a result of medical negligence. Who may bring the claim and what damages are available depends on the relationship to the deceased and other factors. These cases require prompt attention because of California's strict filing deadlines.

Question 5

How long do I have to file a medical malpractice claim in California?

Accepted Answer

Generally, you have three years from the date of the injury, or one year from the date you discovered — or reasonably should have discovered — the injury, whichever comes first. There are exceptions for fraud, intentional concealment, and cases involving minors. These deadlines are strict: missing them almost always means losing your right to recover entirely. If you are uncertain, contact an attorney as soon as possible.

Question 6

I only recently found out the injury may have been caused by negligence. Is it too late?

Accepted Answer

Possibly not. California's "discovery rule" can extend the deadline to one year from when you knew or reasonably should have known that your injury was caused by negligence — but the three-year outer limit still applies in most cases. The analysis is fact-specific. Do not assume it is too late without speaking to an attorney.

Question 7

Does it matter that the care happened at a government hospital?

Accepted Answer

Yes — significantly. Claims against government-owned hospitals or government-employed providers (such as county hospitals or VA facilities) require filing a government tort claim within six months of the incident. This is a separate, earlier deadline that runs before any lawsuit can be filed. Missing it is typically fatal to the claim.

Question 8

What happens during the initial case evaluation?

Accepted Answer

Mark Birmingham will review the facts you share — what happened, when, and what harm resulted. He will ask questions to understand the medical context and give you his honest assessment of whether he sees a viable claim. There is no charge for this evaluation, and it does not create an attorney-client relationship. You are under no obligation to proceed.

Question 9

Will I need to get my medical records?

Accepted Answer

Eventually, yes — medical records are the foundation of any malpractice case. For the initial evaluation, you do not need to have them in hand. Once you decide to move forward, the firm will help you obtain the relevant records and have them reviewed by qualified medical experts.

Question 10

How long does a medical malpractice case take?

Accepted Answer

These cases are complex and typically take longer than other personal injury matters. A straightforward case may resolve in one to two years. Cases that go to trial can take three years or more. The timeline depends on the complexity of the medical issues, the number of defendants, and whether the case settles or proceeds to verdict.

Question 11

What does it cost to hire Mark Birmingham?

Accepted Answer

Medical malpractice cases are handled on a contingency fee basis, meaning there is no fee unless you recover. You pay nothing upfront. If the case is successful, the attorney's fee is a percentage of the recovery. This arrangement means Mark Birmingham only gets paid if you do — and it allows people who could not otherwise afford litigation to pursue legitimate claims.

Question 12

What damages can I recover in a medical malpractice case?

Accepted Answer

California law allows recovery for economic damages — including past and future medical expenses, lost income, and the cost of ongoing care — and non-economic damages such as pain and suffering, emotional distress, and loss of enjoyment of life. California currently caps non-economic damages at $350,000 for cases involving injury and $500,000 for cases involving death, with those caps scheduled to increase annually.

Question 13

Is there a cap on what I can recover?

Accepted Answer

California's Medical Injury Compensation Reform Act (MICRA) limits non-economic damages (pain and suffering) in medical malpractice cases. As of 2023, the cap is $350,000 for injury cases and $500,000 for wrongful death cases, increasing by $40,000 per year until reaching $750,000 and $1,000,000 respectively. There is no cap on economic damages such as medical bills and lost wages.

What people ask before calling

Understanding your situation

Time limits and deadlines

The evaluation and process

What you can recover

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