Ask the Lawyer: Who do we sue if we don’t know exactly who committed the wrong?

Q: My wife was a patient at a hospital. She was injured as a result of their carelessness. We can’t say exactly who did what but among the nurses, doctors and the technicians who treated her, medical malpractice occurred. How do we know who to make a claim against?

-F.D., Redondo Beach

A: There is a Latin phrase that describes the appropriate legal theory: Res ipsa loquiter. This means “the thing speaks for itself.” Negligence is inferred from the nature of the incident, which does not occur without carelessness, or is deemed uncommon in the typical course of events. An example: A chair flies out of a third story window from a hotel; you may not know just who tossed it, or how it came crashing through the window, so you can bring claim against those in control — the hotel. Here, your wife was under the care and control of those at the hospital. You are entitled under res ipsa loquiter to name the hospital itself, at least for starters.

Q: Before going forward with a medical malpractice case, we understand there is a formal notice we have to give to those who engaged in the misconduct. What do we have to tell them?

-B.F., Hawthorne

A: The notice you refer to is covered by California Code of Civil Procedure Section 364. Ninety days prior to bringing a medical malpractice action, you must notify the healthcare provider(s) in writing of the basic allegations you plan to make, and the harm associated with it. The notice should be sufficient enough to put the person(s) and/or entity(ies) on notice of what you contend was done wrong that constitutes medical malpractice, and the injury or injuries that have arisen.

Q: If I wind up hurt by virtue of something a doctor did, including some parts he put into me that wound up breaking loose, is it medical malpractice or products liability?

-E.B., Long Beach

A: Can be both — and sounds like it is.

Ron Sokol is a Manhattan Beach attorney with more than 35 years of experience. His column, which appears on in print on Wednesdays, presents a summary of the law and should not be construed as legal advice. Email questions and comments to him at RonSEsq@aol.com or write to him at Ask the Lawyer, Daily Breeze, 21250 Hawthorne Blvd., Suite 170, Torrance, CA 90503.

Source: Orange County Register