Frequently Asked Questions

We have tried below to answer some common questions that we receive. Every case is different, however, and requires a proper review by an attorney. The information below is only meant to be general in nature. If you have specific questions about a potential case, please contact us.

There are lots of lawyers, many of whom advertise in ads and on TV, boasting about how good they are. How do I know who is the best? Ask questions. It sounds simple, but many people do not do their homework. Here are a few questions you might want to ask any attorney you are considering entrusting with your case:

What are the law firm’s achievements?
How much experience does it have in its field?
Have the firm’s attorneys been honored by their peers (other attorneys)?
Are they asked to speak and to participate as experts in their field?
Have they obtained sizeable judgments or settlements?
Did they go to top schools?
Have they worked on high-profile cases?

In each instance, the Heimberg Law Group is willing to match its credentials against anyone.

Do I have a good case?

Every personal injury is a serious matter. However, under California law you have the burden of proving your personal injury case. Whether your injury would present a good case in court depends on how we are able to prove that your injuries were wrongfully caused by others.

The Heimberg Law Group has a demonstrated, successful track record in gathering the evidence necessary to prove its cases, but that all begins with your cooperation from day one. It is usually impossible to know whether your case is a good one without a thorough review and analysis of the facts and, often, of the medical records.

Most law firms must seek the opinion of a doctor outside of their firm to evaluate the medical issues. At the Heimberg Law Group, Dr. Heimberg's own medical background and the extensive experience of our attorneys in handling complex medical issues, often allow us to determine the facts and what they mean more quickly and completely than other firms can. Dr. Heimberg is able to assess the facts of your case with the combined knowledge of medical and legal skills, which regular doctors that other firms depend on do not have.

What will it cost for me to proceed with a lawsuit?

With our firm, there will be no attorney's fees charged unless we win the lawsuit. Any initial consultation is also free of charge. As far as other expenses, such as expert fees, deposition costs, etc, these are typically advanced by our firm on your behalf and recovered when we reach a settlement or a verdict.

How long will it take before my case goes to trial?

This will often depend upon the complexity of the issues in the lawsuit. The actual date of trial also will vary from case to case; however, the average case typically gets scheduled for trial within one-and-a-half to three years after the filing of the lawsuit.

If one of my family members dies, who has the right to bring a lawsuit?

Generally, a surviving spouse and/or the surviving children have this right. There are circumstances, however, when other people who are financially dependent upon the deceased may also have rights. Every case must be properly examined by a lawyer to make this determination.

My baby was born with severe problems-- who has the right to bring a lawsuit?

In most circumstances both the baby and the parents have this right. However, the baby's rights are primary and often involve a different "statute of limitations" (deadline) than the rights of the parents.

In medical malpractice cases, for example, the mother also may have her own, separate claim that can be pursued on her behalf. Unfortunately, this theory of liability currently does not exist for the father, although, under certain circumstances, there are other potential claims that can usually be pursued on behalf of the father. Other family members rarely, if ever, have the right to proceed with a claim arising from birth-related injuries suffered by the baby.

Are there special rules that apply in cases involving medical malpractice?

Yes. The State of California, since 1975, has had special laws known as "MICRA" (Medical Injury Compensation Reform Act) that apply only in cases of medical malpractice.

Although medical malpractice cases are really just a personal injury case brought against healthcare providers such as hospitals, doctors or HMOs, the law provides many protections to healthcare providers that do not apply to other types of defendants who may cause personal injuries. This makes medical malpractice cases very difficult to handle, especially for lawyers who do not have a background in these types of cases.

The Heimberg Law Group has specialized for many years in successfully pursuing medical malpractice cases. We are among the very best at overcoming the obstacles put in place by MICRA.

What are the special rules that apply in medical malpractice cases?

There are many; but to name just a few:

1. If MICRA applies, damages (money you can recover for your injury) for pain and suffering can be no more than $250,000, even when there has been a death or serious injury.
This limitation does not apply to "economic" damages, which includes past or future earnings, past or future medical expenses, loss of the value of household services attributable to your injuries or the injuries or death of a loved one.

However, the Heimberg Law Group has been a pioneer in arguing that in certain cases, MICRA does not apply.
2. Unlike normal personal injury cases, where someone's insurance coverage can never be mentioned to a jury, in a medical malpractice case any money you received from your health insurance or from other sources, such as Social Security or disability benefits, may be shown to the jury at trial. The jury is then allowed to limit your award by subtracting the insurance or benefits money you received from the amount awarded by the court.
In other words, if you had the foresight to purchase insurance, you are basically punished for that wise decision at trial. Yet, remarkably, a doctor who was negligent can have an award against him reduced because of money he received from the injured person's insurance company for the negligent care.
3. Under MICRA, the defendant (the doctor, hospital, nurse, etc.), who is found by the court to be negligent in your care, may choose to pay you all future damages over $50,000 over a period of time, in annual installments, rather than be paid out in a lump sum at the time of the judgment. If the injured person should die even one day after the judgment, the defendant's obligation to make any future payments ends.

Are there ways to get around the protections provided to healthcare providers under MICRA?

In some instances, yes. The Heimberg Law Group is at the cutting edge of this area of law. We have successfully limited the application of MICRA in medical malpractice cases, resulting in protections afforded to healthcare providers becoming either limited or eliminated entirely. Whether a case is one that can be moved outside of MICRA will depend on the circumstances of that case.

What happens during the life of a lawsuit?

After the case is filed in court, the attorneys conduct "discovery," a legal term for the formal investigation techniques allowed by law. These techniques include sending written questions, asking for documents, and taking “depositions,” a formal interview of a witness under oath.

Typically, there is also a need to hire expert witnesses who form opinions for trial and then have their depositions taken. While formal discovery proceedings are important, often the Heimberg Law Group’s success at trial has been due to creative, informal research and investigations, uncovering evidence that others may never have found.

As the case proceeds towards trial, there may be one or more “mediations” (formal settlement meetings), that the parties attend in an effort to reach a “settlement” (agreement), before trial.

Sometimes cases will settle before trial, but in many medical malpractice cases there is no settlement and the case must go to trial. This is often because insurance carriers have little to risk at trial due to the $250,000 caps on damages demanded by MICRA. Also, often doctors simply refuse to settle because their insurance carrier is paying their legal bills and any settlement of $30,000 or more must be reported publicly to the California Medical Board and goes on the doctor's record.

Even when a trial date comes up, the courts are very busy, so few trials start on time. It is not uncommon for a trial date to be postponed several times before a trial actually begins. The parties, witnesses and attorneys must be prepared to be very flexible with their schedules.

How long do I have to bring my lawsuit?

In California, there are different statutes of limitations (deadlines), depending upon the type of claim you are making. In every case, however, you should have an attorney fully review the facts with you to determine what deadline applies to your case.

In medical malpractice cases, for adults there is generally a one-year limitation that applies from the point the injured party either knew or reasonably should have known that he had suffered an injury because of the negligence of a licensed medical care provider. However, there are circumstances for adults where the statute of limitations may be extended to three years from the time of injury.

With regard to children who have been injured by medical negligence, different limitation periods apply. Children who have suffered a medical malpractice injury at a time when they are below the age of six typically have until their eighth birthday to file an action. Children over the age of six typically have three years after the time of injury to bring their lawsuit.

For personal injury actions not arising out of medical malpractice, the statute of limitations for adults is usually two years after the injury. For children, personal injury cases typically can be filed as late as one year after the child reaches the age of 18.
For all personal injury and medical malpractice cases involving claims against public entities (the State of California, the federal government, cities, counties, school districts, or other types of special districts such as hospital districts), a claim usually must be filed with the public entity not later than six months after the date of injury regardless of the age of the person injured.

In California medical malpractice actions, there may be ways that the statute of limitations can be extended up to an additional 90 days after the deadline.

Do I have a right to a jury trial?

Yes. Under the constitutions of both the United States and the State of California, you have the right to a jury trial. However, you may have waived your right in certain circumstances if you have previously signed an arbitration agreement.

It is generally our policy to contest the application of arbitration agreements whenever this is possible. The Heimberg Law Group has been quite successful in challenging arbitration agreements in instances where the interests of our clients have warranted it.

Can I sue my HMO for personal injuries suffered as a result of medical malpractice?

If your HMO membership is part of an employment benefit, there are limitations on your right to sue for personal injury. However, the Heimberg Law Group has been successful in pursuing novel legal theories against HMOs, even when they have been an employment benefit.

For example, when HMOs have contracted with other providers to give care to the HMO members, we have been able to hold the HMOs responsible for personal injuries suffered as a result of the HMO's failure to oversee the quality of care provided.

In those circumstances in which the HMO coverage is not an employment benefit or where the HMO itself is an actual healthcare benefit (like the Kaiser system), we have been quite successful in pursuing actions against HMOs when their administrative decisions have resulted in personal injuries.