Legal Question in Bankruptcy in California

A malpractice claim will generally be discharge in bankruptcy unless the victim files a lawsuit in bankruptcy court objecting to the discharge under Section 523 of the Bankruptcy Code. The lawsuit is called an adversary proceeding, but the grounds for carving out a malpractice claim from being discharge are fairly narrow.

If the malpractice is the the result of a "willful and malicious injury by the debtor to another entity or to the property of another entity" then it might be possible for the victim to prevail in the adversary proceeding. However, most malpractice claims are based on negligent rather than intentional acts.

The time deadline to file the adversary is very short and the claim WILL be discharged unless victim files one.

Generally malpractice will be discharged although if fraud allegations are involved or an intentional act then claimant may be able to sue in bankruptcy by filing an adversary proceeding. If insurance is available then the insurance company would still have to pay and the suit can continue against you but no more than the amount of the coverage can be collected. The claimant needs to obtain permission from the bankruptcy court to continue the suit for the insurance coverage.

The malpractice claim, like most if not all malpractice claims, is rooted in negligence. Damages caused by negligence, as opposed to intentional misconduct such as fraud, are almost always dischargeable - it is done all the time. Should you need more information, please do not hesitate to contact me, as I am right in you neck of the woods.