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De-Mystifying Medical Malpractice Cases -- A Consumer Guide to California Medical Malpratice Litigation
John D. Winer, San Francisco
A. What Is Medical Malpractice?
Medical malpractice actions are based on the breach of a
health care provider’s duty to the patient to perform his or
her duties with the skill required of like members of the
profession.
Medical malpractice cases are sometimes called medical
negligence cases. Under California statute, medical
malpractice is defined as “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.”
B. Statutory Limitations on Medical Malpractice Actions.
In 1975, the California legislature passed the Medical
Insurance Compensation Reform Act (“MICRA”) which imposed
severe restrictions and limitations on medical malpractice
victims and their attorneys.
MICRA applies to cases against virtually any licensed
health care provider including hospitals, doctors,
chiropractors, psychotherapists, physical therapists and
almost every other licensed health care provider. MICRA
restricts damages that victims are able to recover and fees
their attorneys are allowed to charge and makes these already
difficult cases even more difficult to handle. MICRA will be
discussed throughout this article.
C. Necessity for Filing an Intent to Sue Letter in
Medical Negligence Cases.
Under MICRA, a person must provide a health care provider
with an “intent to sue” letter at least 90 days prior to
filing a lawsuit for professional negligence. However, a
90-day letter does not apply to actions against health care
providers for misconduct other than professional negligence,
for instance, sexual abuse.
No particular form of notice is required, but it must
notify the defendant of the legal basis of the claim and type
of loss sustained, including with specificity the nature of
the injury suffered.
D. The Key Concept in Medical Negligence Cases: The
Standard of Care.
i. Definition of the standard of care.
The standard in care in California for health care
providers requires that they exercise that degree of skill,
knowledge and care ordinarily possessed and exercised by other
members of the profession acting under similar conditions and
circumstances.
ii. No matter what a health care provider does, he
or she will not be found liable if the standard
of care is maintained.
Because liability for negligence is only imposed when the
health care provider fails to act as would a reasonably
skilled practitioner in like circumstances, a practitioner who
conducts himself or herself in conformity with the standard of
care will not be held liable even if the treatment proves
unsuccessful.
iii. A bad result does not necessarily mean
malpractice.
The existence of poor treatment or surgery result does not
in any way raise a presumption of the violation of the
standard of care. Plaintiff must still prove a standard of
care violation.
iv. Errors of judgment are not necessarily
malpractice.
If there is not a standard of care violation, the
plaintiff has no case. This is true even where a health care
provider makes an error in judgment.
Jurors in medical negligence cases are instructed that a
health care provider is not necessarily negligent because he
or she errs in judgment or because his or her efforts prove
unsuccessful. There is only liability if the health care
provider failed to use reasonable care and skill in his or her
application of medical learning.
On the other hand, a practitioner cannot defend a case by
claiming he or she used his or her best judgment if it was, in
fact, inferior to that employed by the average practitioner in
the same or similar location.
v. Highest skill not required.
Further, although a health care provider is expected to
employ up to date techniques, the standard of care does not
call for a practitioner to use the highest skill known to
medical science.
vi. Two schools of thought defined.
Because health care providers may have valid disagreements
over the particular method of treatment that should be
utilized, negligence will not necessarily be established
merely by showing that an alternative method of treatment
would have been selected by other practitioners.
Under most circumstances, if the evidence suggests that
there were alternative recognized methods of treatment
available, a practitioner would not be found negligent for
selecting the wrong one as long as it is a “recognized”
treatment choice.
This rule makes malpractice cases against psychotherapists
particularly difficult because there are hundreds of
supposedly recognized schools of thought -- so treaters try to
justify just about any unusual treatment modality as a
legitimate “school of thought.”
E. The Standard of Care of Specialists.
The standard of care governing medical specialists
requires the exercise of professional conduct normally
exhibited by specialists in the same or similar locality under
similar circumstances. A practitioner will be held to this
higher standard of care if he or she has specialized training
regardless of whether or not the practitioner holds himself or
herself out as a specialist. Thus, for instance, a
neurologist must comply with a standard of care of other
neurologists.
F. Duty to Refer to a Specialist.
A health care provider has the responsibility to consult a
specialist or refer a patient to a specialist when he or she
knows, or in the exercise of reasonable care should know, that
superior treatment might thereby be obtained.
A general practitioner who does not seek or recommend a
specialist’s advice, when a reasonably prudent practitioner
would do so and a specialist is available, will be held to the
standard of care applicable to specialists in the particular
area of medicine. This can be problematic for doctors in HMOs
when the HMO tries to restrict their ability to make referrals
and gives them monetary disincentives to make referrals. An
HMO’s refusal to allow a referral does not protect a doctor in
a medical malpractice case as the doctor must at least try to
make the referral.
G. Lack of Informed Consent.
i. When informed consent is necessary.
Except in emergency situations, a health care provider
must obtain consent from a patient.
ii. How much information does the patient need?
The scope of a health care provider’s duty to provide
informed consent is measured by the amount of knowledge a
patient needs in order to make an informed choice, and the
health care provider should give the patient all information
and material to make that decision.
The health care provider must explain the procedure and
the risk of the procedure in a way that a lay person can
understand it and provide the patient an opportunity to weigh
the risks.
iii. Must be a connection between failure to
inform and the injury.
In order to prevail in an informed consent case, the
patient must establish a causal relationship between the
health care provider’s failure to inform and the injury to the
plaintiff. The causal connection arises only if it is
established that had the revelation been made, consent to
treatment would not have been given.
iv. Patient must also be informed of the risk of not
undergoing a procedure.
Patients must be informed not only of the risks inherent
in the procedure in question, but also the risks of a decision
not to undergo the treatment or procedure.
v. When informed consent not necessary.
The health care provider can defend the failure to
adequately inform the patient by asserting:
► An emergency situation.
► The patient was unconscious and the practitioner
believed the procedure should be performed
immediately and there was insufficient time to
inform the patient.
► The patient was incapable of giving consent
(e.g., a minor) and the practitioner reasonably
believed the procedure should be undertaken
immediately and that there was insufficient time
to obtain consent from a parent.
► Where an additional surgery is found necessary
due to conditions arising during an operation
which endangers the patient’s health or life.
► Where there is no reason why the patient would
not have requested the treatment even if the
condition is not life threatening if the
additional treatment is a requirement because of
a complication in the course of the procedure.
► The patient requested not to be informed.
► Where a doctor can prove that the disclosure
would have so seriously upset the patient that
the patient would not have been able to
dispassionately weigh the risks of refusing to
undergo the recommended treatment.
vi. Informed consent cases are difficult to win.
Generally speaking, informed consent cases are extremely
difficult for plaintiff’s to win. Health care providers
generally have patients sign detailed and broad consent forms
and it is very difficult for the plaintiff to establish that
he or she would not have agreed to the procedure if they knew
more about it and its risks.
H. Causation.
i. Proving breach of the standard of care not
enough.
A plaintiff must prove, not only that the health care
provider was negligent, but that the defendant’s negligence
caused their injury. This can be very difficult in medical
malpractice cases. Frequently, plaintiffs are able to
establish a breach of the standard care but cannot prove that
that breach “caused” the injury.
ii. “A substantial factors” causation standard.
A plaintiff does not have to establish that the negligence
of the defendant was the only cause of the plaintiff’s injury
but, rather, that it was a “substantial factor” in causing the
injury. Still, almost by definition, the plaintiff was
suffering from “an injury” or medical condition before the
treatment in question in a medical malpractice case.
iii. Common causation defenses.
The defense will frequently make one of the following
claims:
► The injury which the plaintiff is claiming in
the lawsuit is merely a natural progression of
the condition for which the plaintiff sought
treatment with the defendant, and the defendant
did not aggravate that condition by his or her
negligence.
► That although the physician violated the
standard of care, it turns out that the
condition of the plaintiff was incurable;
therefore, the negligence did not cause any
injury. (This is a frequent defense in failure
to diagnose cancer cases.)
► Although the defendant was negligent in failing
to diagnose a condition sooner an earlier
diagnosis would not have altered the outcome in
this particular case.
► That the injury from which plaintiff now suffers
has nothing at all to do with the defendant’s
treatment but, rather, developed independently
of whatever the defendant did wrong.
► That although the defendant violated the
standard of care by failing to use appropriate
diagnostic techniques, the condition from which
plaintiff now suffers would not have been
discovered even if proper diagnostic techniques
were utilized.
iv. Causation defenses sometimes used to confuse
jurors.
There are many variations of these causation “defenses”
and they are limited only by the extent of the imagination of
the health care provider, the health care provider’s experts
and the defense attorney. These causation defenses, although
sometimes valid, are frequently utilized by the defense in
malpractice cases to confuse the jurors and to provide the
jurors with a reason to find for the defense even when there
has been clear negligence.
Jurors, who tend to sympathize with doctors in medical
malpractice cases, are sometimes looking for just such a
reason to rule for a doctor. In California, over 80% of
medical malpractice cases that go to trial are won by doctors.
The causation defense is one of the reasons for this success
rate.
I. The Importance of Expert Testimony in a Medical
Malpractice Case.
i. Requirement of expert testimony on standard of
care.
Generally, expert testimony is required to prove a
violation of the standard of care in a medical malpractice
case.
Expert testimony is usually required to establish the
customary medical practices in the community and what the
appropriate practice would be under the circumstances
presented in the particular case.
ii. Expert testimony required to prove causation.
Expert testimony is also necessary to establish a causal
link between the plaintiff’s injury and the negligence of the
defendant.
iii. When expert testimony not needed.
The only exception to the requirement of expert testimony
is the rare case in which the negligence of a health care
provider can be demonstrated by facts which can be evaluated
by resort to common knowledge. This type of case is
extraordinarily rare and if the defense hires an expert to
testify that the obvious negligence was, in fact, within the
standard of care, plaintiff will probably lose.
iv. Battle of the experts.
Medical malpractice cases almost always come down to a
battle of experts although a plaintiff’s case is probably
helped if the jurors, by their common sense or life
experience, realize that the defendant health care provider
should have done something differently.
v. Expense of experts.
Expert witnesses in medical malpractice cases are
extraordinarily expensive. Many charge well over $500 an hour
to review records and testify. In a medical malpractice case,
there may be thousands of pages of relevant medical records
and thousands and thousands more pages of depositions (sworn
out-of-court testimony) which must be reviewed by the experts.
Thus, a single expert in a medical malpractice case may charge
$25,000 to $50,000 by the end of the trial. It can cost over
$5,000 just for a plaintiff to learn whether or not there is a
valid case.
vi. Most cases require multiple experts.
More often than not, more than one expert witness is
required to prove a medical malpractice case. Frequently
there will be more than one specialist who committed
malpractice. Also, there may be a hospital involved and a
family doctor who also may have been negligent. Therefore,
plaintiff may have to retain a hospital expert, a general
practitioner and more than one specialist as experts. Then,
it may also be necessary to retain yet another expert on the
causation issue, i.e., in order to prove that the malpractice
caused the injury.
The defense will always hire many experts so that
plaintiff may be at a disadvantage if he or she does not match
the defense expert for expert.
vii. The conspiracy of silence.
It is generally very difficult for plaintiffs to find
doctors willing to testify in medical malpractice cases. Many
doctors feel “there but for the grace of God go I” and feel
uncomfortable testifying against a colleague even if it is
somebody they do not know.
The defense, on the other hand, has no problem finding
doctors who are willing testify on behalf of their colleagues.
They can usually retain the best experts from the best
universities and teaching hospitals. Thus, although
plaintiff, with some effort will generally be able to find a
qualified expert in a valid case, the defense will attempt to
“trump” that expert by retaining an even more respected expert
in the particular field.
For these reasons, along with the damage and fee
limitations placed on plaintiffs and their attorneys in
medical malpractice cases, it is generally unwise to bring a
medical malpractice case unless there is fairly clear
liability, causation and substantial damages.
J. Failure to Diagnose Cancer Cases.
i. Factors that need to be present for plaintiff to
prevail.
One of the most common type of medical malpractice cases
is the failure to diagnose cancer case. These cases can be
won by the plaintiff but normally only if one of the following
factors are present:
► The patient presented to the doctor at a time
after the cancer was present enough to be
diagnosable but before it was too late to be
cured; or
► The patient presented to a doctor and the
doctor, on examination or testing, found
evidence that cancer may be developing, yet the
doctor did not schedule proper follow up or
refer to a specialist for further testing and
the cancer was the type which would have been
present at the time of the follow up
examinations and would have been curable if
found at that time.
► That once the cancer was discovered, the doctor
unreasonably delayed in taking aggressive steps
to remove it and in the time period between the
discovery of the cancer and when it was finally
removed, the plaintiff had lost a significant
chance of survival.
ii. Why cancer cases are so difficult to win.
There are some cancer cases that almost never can be won
by plaintiffs because the cancer is of a type or in a place
that an earlier diagnosis or more aggressive treatment would
not have significantly altered the outcome.
Also, the defense in a cancer case will try to establish
that plaintiff’s failure to seek or follow up on recommended
treatment led to the bad result.
At other times, there are no signs or symptoms of the
cancer until it is too late to take effective action to treat
it.
iii. Requirement of multiple experts.
Failure to diagnose cancer cases can be won by plaintiffs.
However, they usually require at least two experts; the
treating doctor, to establish a breach of the standard of
care, and an oncologist to establish that the outcome would
have been different with more aggressive diagnosis and
treatment.
K. Medical Malpractice Involving Birth (Obstetrical
Malpractice Cases).
i. The high cost of obstetrical malpractice.
The most challenging medical malpractice cases usually
involve the very serious neurological and other systemic
problems that a baby can develop during the pregnancy and
birth process. If the pregnancy, birth and immediate post-birth period are not monitored properly, a baby can develop
cerebral palsy and other extraordinarily serious illness and
disabilities which can severely shorten the baby’s life
expectancy and/or require a lifetime of attendant care.
Frequently the cost of caring for these babies can be tens
of millions of dollars over their lifetime. Thus, the success
of a medical malpractice case might make the difference
between the child growing up with skilled attendant care in a
loving environment versus ineffective treatment which may lead
to an extremely unhappy lifetime and parents who will try
desperately and feebly to obtain appropriate care, but will
not be able to afford it.
ii. Multiple experts are required.
Obstetrical malpractice cases are almost always very
complicated and frequently require experts from many
specialties. The cases will usually not only involve
obstetricians, child neurologists and pediatricians but also
specialties that most people have not heard of such as
neonatalogists and perinatalogists.
iii. Conception through birth analysis.
The cases involve an investigation of the course of the
baby’s development from its conception through, usually,
several hours after birth.
iv. The common defenses.
The defendants in the case will almost always claim that
the baby’s severe illness was due to genetic factors outside
of the physician’s control; problems in the pregnancy or birth
process that were undiagnosable until it was too late;
problems that developed during the delivery which are
sometimes unavoidable and occur with the best of care; the
mother’s smoking, ingestion of drugs, alcohol or some other
substance or trauma to the mother which created the condition;
or the mother’s failure to report problems or symptoms that
developed during the pregnancy or failure to make scheduled
appointments or delay in seeking treatment once problems
developed.
v. Focus on plaintiff’s pre-delivery claim.
Plaintiff, on the other hand, in a case involving problems
that developed pre-delivery, will attempt to establish that
the obstetrician fell below the standard of care by failing to
recognize signs and symptoms of fetal distress and taking
appropriate measures accordingly.
Further, it will generally be claimed that the
obstetrician failed to recognize significant risk factors in
the pregnancy and take appropriate steps including sometimes
referring the mother to an obstetrician who specializes in
high risk pregnancies.
There are many risk factors that require special care and
consideration, including a drug and alcohol history of the
mother, placement of the fetus in the mother’s body,
significant problems in a prior pregnancy, premature labor,
infections that the mother develops during pregnancy, water
that breaks too early, a baby that is more than one week past
the due date and many other potential factors.
In those cases, the standard of care requires that the
baby and mother be followed more closely and, in some cases,
once the baby is viable, a C-section should be performed
before further complications result.
vi. Focus on the labor and pre-delivery process.
Another major focus of obstetrical malpractice cases is on
the labor and pre-delivery process. A low risk pregnancy can
become high risk during labor particularly if, for one reason
or another, often an umbilical cord around the baby’s neck,
the baby is not getting enough oxygen. At some point, if the
fetus does not receive enough oxygen, brain damage and other
systemic problems will develop.
The main tool utilized by obstetricians and nurses to
diagnose a lack of oxygen to the fetus is the fetal heart
monitor which measures the fetus’ heart beat. If the fetus’
heart beat either accelerates or decelerates too quickly over
a period of time it is cause for great concern and a C-section
has to be performed immediately.
Cases involving negligent deliveries usually focus on the
failure of the obstetrician and nurses to check the fetal
heart monitor frequently enough or the failure to properly
read serious signs of distress on the monitor.
vii. Problems in the delivery itself.
Sometimes obstetrical malpractice cases involve mistakes
made in the actual process of delivering the baby from the
mother during vaginal delivery. If a delivery is not done
properly, a baby can be deformed and other times in difficult
deliveries, a baby will, once again, receive a lack of oxygen
which will cause brain damage and other systemic problems.
Frequently, the claim will be that the obstetrician should
have recognized the difficulties that were going to occur in
delivery because of the size or position of the baby and
should have recommended a C-section or should have utilized
techniques which are recognized as being more successful in
difficult delivery situations.
viii. Post-delivery cases.
Malpractice cases can focus on the treatment of the baby
immediately after birth. When the baby is born, he or she is
given an APGAR score which helps doctors and nurses recognize
signs that the baby is in distress. Some malpractice suits
claim that the doctors and nurses failed to recognize the
amount and significance of the baby’s distress or failed to
take appropriate resuscitative and other corrective measures
accordingly.
ix. Nurses not doctors.
As anybody who has been through childbirth or witnessed a
childbirth knows, over 90% of the monitoring and care given to
the mother and fetus during childbirth is performed by nurses
and not doctors. Overburdened, undertrained and tired nurses
can make mistakes and sometimes, for staffing reasons alone,
cannot monitor the birth as closely as they should. Further,
obstetricians, like all people, do not want to be disturbed in
the middle of the night or while they are seeing patients in
their busy practices or when they are on a golf course by a
call from a hospital to handle a delivery until it is
absolutely necessary based on the frequency of contractions
and the extent of the cervix.
This creates a situation which is fraught with danger if
something begins to go wrong during the delivery. Hospitals
will usually have someone on staff to cover such emergencies;
however, that physician does not have the same familiarity
with the patient and the patient’s history and is certainly
not the obstetrician chosen by the patient to handle such
problems.
x. Where were the nurses and doctors?
Most frequently, medical malpractice cases involving
improper deliveries involve an investigation of where the
nurses and obstetrician were at the time that problems
developed and how they reported and handled those problems.
Unfortunately for plaintiffs, nurses and physicians are
trained on the appropriate way that a mother and fetus’
progress during birth should be charted. Thus, for instance,
if a particular hospital has a standard that the fetal heart
monitor must be checked every 15 minutes, a nurse knows to
chart 15 minute checks of the mother and baby even if he or
she only monitored the situation every 30 minutes. This
sometimes makes it very difficult to prove any wrongdoing
during the course of delivery.
xi. Altered medical records.
However, if the plaintiff can establish that the chart was
altered or deceitfully filled out, based on the testimony of
witness or evidence that a doctor was not called when the
chart says he or she was called, then this will greatly
increase the likelihood that plaintiff will prevail, not only
in a medical malpractice case, but also in a fraud case.
L. Medical Malpractice Cases Involving Surgeries.
i. Different issues depending on the type of
surgery.
The nature of a medical malpractice case will differ
depending upon the particular surgery in question; however,
most cases will have several common themes.
There may be an issue, in elective surgeries, as to
whether the surgery should have been performed at all.
The claimed malpractice in a case may be that there were
not enough indications, based on the patient’s signs and
symptoms, to perform a surgery rather than some less risky or
invasive treatment. This kind of case may occur when an
obstetrician performs a hysterectomy which was not necessary
or, for example, a doctor performs open heart surgery when a
less radical form of treatment, such as angioplasty, would
have been indicated.
In some cases, particularly those involving cosmetic
surgery, the malpractice claim could be that the physician
performed the surgery simply to make money.
ii. Cases in which the plaintiff was not a good
candidate for any surgery.
Other medical malpractice cases involving surgery will
focus on the fact that the plaintiff was not a good candidate
for the surgery based on the fact that he or had significant
heart, pulmonary or other problems which created a high risk
for that patient if those organs were further stressed by a
surgery and/or the person could not handle general anesthesia.
In these cases, the focus will be whether the necessity
for the surgery outweighed the serious risk to the patient.
Normally, if it is simply a judgment call, the plaintiff will
not prevail. However, frequently a violation of the standard
of care will occur if the patient is not worked up properly
before the surgery so that the surgeon does not realize or
recognize the risks that they should have realized or
recognized.
iii. Pre-surgery work up.
Almost all hospitals require a patient to be examined by
an internal medicine member of the staff before the surgery or
the patient’s own doctor has to submit a written report on the
patient’s general health based on a recent examination shortly
before the surgery.
In addition, the anesthesiologist has to perform some type
of examination and questioning for the patient before surgery.
Sometimes appropriate information is not communicated
between the doctors or they fail to perform the appropriate
tests, given the patient’s signs and symptoms, to diagnose and
recognize a problem which should result in the surgery being
postponed or canceled.
iv. Surgical error.
Medical malpractice cases that focus on mistakes made
during surgery can involve investigation of a large multitude
of problems ranging from slipped scalpels, improperly cut
nerves, improperly administered and monitored anesthesia,
infections caused by unsterile tools and any number of other
errors.
These cases are difficult to prove at times because the
surgeon and anesthesiologist will make notes indicating proper
protocol was followed and a surgeon will dictate an operation
report which conforms to the standard of care.
Sometimes the malpractice is not discovered until the
patient requires another surgery and the second surgeon
discovers what was done improperly in the earlier surgery.
Other times, the mistake will be discovered as a result of the
patient’s poor result. For instance, a patient who goes in
for a simple elbow surgery comes out with severe nerve damage
and an inability to use his or her hand. It will be obvious
from the result that a nerve was cut. Other times, the
mistake will never be discovered or proven, despite a bad
result.
v. Common defenses to surgical malpractice cases.
Surgeons will vigorously defend the case claiming that the
poor result was a known risk of the surgery and frequently,
the patient will have signed an informed consent sheet
indicating knowledge of the risk.
However, this does not preclude a claim for malpractice if
the surgeon did not conform to the standard of care in
performing the surgery and the poor result was caused by a
violation of the standard of care.
Further, surgeons will defend the case claiming that they
are not an insurer of the success of an operation. Not every
operation is successful. This is true and, again, unless the
plaintiff can establish a violation of the standard of care
and that the poor result was caused by the violation of the
standard of care and not a failure which can be reasonably
anticipated in this type of operation, the plaintiff will
lose.
vi.
A bad result is not enough to make a case --
there must be proof of a standard of care
violation.
Generally speaking, it is very difficult to prevail in a
medical malpractice surgery case if the only claim is that the
surgery did not work. It is too easy for the surgeon to
defend the case by showing statistics that bad results occur a
given percentage of times with even the best surgeons
performing the surgery.
Rather, the better surgery malpractice cases from the
plaintiff’s point of view involve serious complications that
occur during the surgery which should not have occurred unless
the surgeon or anesthesiologist violated the standard of care.
For example, a case in which the patient becomes brain damaged
as a result of the anesthesiologist’s failure to monitor
oxygen flow to the brain or a case in which the surgeon fails
to monitor the patient’s loss of blood and the patient dies.
These cases not only end up with a bad result, but there is
also proof of negligence.
vii. Recovery room cases.
Yet another type of malpractice surgery case focuses on
problems that can occur in the recovery room. A patient who
has undergone intensive surgery or has been administered a
general anesthetic, remains at risk for acute complications
from the surgery or anesthetic for a period of time after the
surgery. Thus, patients must be carefully monitored, usually
by nurses and sometimes by the surgeon or another physician in
the recovery room.
At times, inadequate monitoring will occur and a patient
will develop a complication such as severe loss of blood, loss
of oxygen to the brain or a pulmonary embolism which can
result in severe brain damage, damage to the heart or lungs
and/or death.
viii. Post-operative complications.
Finally, surgery medical malpractice cases may involve
complications which result from improper post-surgical care
while the patient rehabilitates in the hospital or even when
the patient goes home.
These cases usually involve the failure to detect and
treat post-surgery complications such as infections, lung and
heart problems and failure to diagnose pulmonary embolisms
which all can result in serious injury or death.
Sometimes the case will focus on the patient being sent
home before she or he is ready. This situation is becoming
increasingly common with HMOs who try to get the patients out
of the hospitals as quickly as possible. Unfortunately for
the physician following a patient in the hospital, the
physician remains responsible for a decision to release the
patient too early.
A duty to perform appropriate post-surgical care does not
end when the patient leaves the hospital. The surgeon has a
duty to perform appropriate post-operation evaluations over a
reasonable period of time to ensure that no complications
occur or have occurred.
M. Medical Malpractice Cases Not Involving Surgeries.
i. Cases may involve inpatient or outpatient
malpractice.
Many malpractice cases involve a failure of a physician or
other health care provider to render appropriate diagnoses and
treatment outside of the surgical setting. Cases can include
patients who are seen on an office basis only or sometimes
patients who are also seen in the hospital.
ii. Some of the more standard of care violaitons.
These cases will usually involve one or more of the
following:
► Failure to take an adequate history of the
patient.
► Failure to adequately monitor a patient’s
progress.
► Failure to diagnose a problem.
► A missed diagnosis of a problem.
► Failure to refer to a specialist when indicated.
► Failure to hospitalize a patient when indicated.
► Failure to schedule return office visits
frequently enough.
► Failure to utilize indicated diagnostic tools
such as blood and radiographic tests.
► Failure to render appropriate treatment when the
diagnosis is made.
►
Failure to prescribe the appropriate medicine.
► Failure to prescribe the appropriate dosage of
medicine.
► Failure to prescribe the medicine for an
appropriate period of time.
► Misprescription of medicine (i.e., the wrong
medicine).
► Failure to properly monitor blood levels, when
indicated, for certain medicines.
► Acting beyond expertise in treatment of a
patient.
► Failure to adequately instruct the patient as to
home care or when to return to the office if
problems result.
► Failure to seek appropriate consultation.
► Failure to follow a patient or arrange for
appropriate follow up when a patient is
hospitalized.
► Failure to adequately respond to emergencies.
iii. The importance in all malpractice cases of
proving a standard of care violation and
causation.
The above list is by no means conclusive. There are many,
many other forms of medical malpractice which can occur. As
always, the plaintiff will only prevail if they can prove a
violation of the standard of care and that violation caused a
serious injury.
It is not enough for a plaintiff to prove a violation of
the standard of care. Plaintiff also must prove that that
violation was a substantial factor in causing an injury.
For instance, in a case in which a doctor prescribed the
wrong medication, a patient will not prevail unless the wrong
choice of medication resulted in a serious decline of their
medical condition or caused some other serious problem because
the patient was getting medicine he did not need and could not
tolerate it. If the misprescription, no matter how upsetting,
was harmless, the plaintiff will not win.
N. Arbitration Versus Trial.
i. Mandatory arbitration agreements are legal if
fair.
Many HMOs, particularly Kaiser, insist that their members
sign arbitration agreements whereby any medical malpractice
claim has to be heard in arbitration rather than trial. Some
private doctors and hospitals have patients sign similar
agreements.
The validity of the arbitration contracts has been upheld
by California courts as long as they are fair, balanced and
the plaintiff maintains the same rights that they would have
in a trial in front of a jury.
ii. Types of malpractice arbitrations.
Arbitrations differ somewhat depending upon the
arbitration agreement and even Kaiser has two different kinds
of arbitrations.
iii. Arbitrations may be more efficient.
An arbitration differs from a trial in that it is less
formal and can sometimes be quicker and more efficient because
no time is spent picking a jury and educating a jury on
important issues. However, this is highly debatable.
iv. Mechanism of arbitration.
The arbitration agreement will have some mechanism by
which a neutral arbitrator, who is a judge or attorney, will
hear the case. In some cases, particularly Kaiser
arbitrations where the value is over $200,000, Kaiser can
insist on a panel of three arbitrators. In that situation,
the plaintiff chooses a party arbitrator, Kaiser chooses a
party arbitrator and then the party arbitrators (or sometimes
the attorneys) choose a neutral arbitrator.
v. Inefficiency of arbitration.
Unfortunately, the arbitration systems, particularly
Kaiser’s arbitration system, has not been as efficient as most
had hoped. In cases with three party arbitrators, the
schedules of at least five attorneys and/or a retired judge
must be coordinated for the arbitration dates to be set. This
is sometimes very difficult because everybody has a busy
litigation schedule. Most Kaiser arbitrations take a week to
three weeks to complete. If the attorneys’ estimates on the
length of the trial are off, sometimes an arbitration has to
be stopped and continued for months before it can be
completed.
vi. Arbitrations can be more expensive.
Also, in some situations, plaintiffs have to pay for the
cost of their share of an arbitrator or their own party
arbitrator. In a long arbitration, this can cost as much as
$30,000 to $50,000. It would cost the plaintiff one-twentieth
of that to pay for a court reporter or jury fees at the trial.
vii. Plaintiffs more successful at arbitrations
than trials.
Generally speaking, contrary to what many health care
providers thought when they initiated arbitration agreements,
plaintiffs win more often in California in arbitrations than
they do during jury trial. Plaintiffs only win approximately
15% of the time during jury trials, while they win
approximately 40% of the time in arbitrations. However,
plaintiff’s success rate at trial may be higher if the
defendant was an HMO like Kaiser.
This is why many health care providers, other than HMOs,
have either stopped using arbitration agreements or do not try
to enforce them when they are sued.
viii. Why plaintiffs are more successful at
arbitration than trial.
Most people believe the reason for plaintiffs’ greater
success at arbitration than jury trial is the fact that jurors
tend to sympathize with the plight of doctors and if they like
the doctor, they do not want to ruin the doctor’s reputation.
Judges and attorneys are more likely to put sympathy
factors aside and decide the case on the actual law and facts.
Further, most observers conclude that defendants attempt to
try to confuse the jurors in cases where they are at risk for
losing and this tactic is less likely to work when an attorney
or a judge is hearing the case.
ix. When plaintiff wins, awards generally lower at
arbitration.
It is generally thought that in cases in which plaintiff
wins, the plaintiff will receive a higher award in front of a
jury than they would at arbitration. This is because when
jurors actually believe in a plaintiff’s case, they will be
more likely to be receptive to their damage arguments.
However, given the damage limitations which will be set forth
below, this is not much of a gain for plaintiffs.
The real loss for plaintiff occurs in a case against an
HMO where the HMO’s conduct is so bad it is worthy of a
punitive damage award. In this situation, an arbitrator is
far less likely to make a large punitive damage award against
the HMO than would be an angry jury. Further, jurors would be
much more likely to rule for plaintiff in malpractice cases
against HMOs than cases against individual doctors. This is
probably the real protection that HMOs seeks in arbitration.
x. How can someone who wants repeat business from
an HMO be truly neutral?
The major complaint from plaintiffs in Kaiser arbitrations
is that it is difficult to find a “neutral” arbitrator who is
truly neutral. Kaiser keeps a list of all arbitrators in its
cases and then it carefully monitors the award given by each
neutral arbitrator in each case.
Although Kaiser is now, finally, revealing some of the
information regarding prior awards of neutral arbitrations to
plaintiffs’ attorneys, it is only because it was forced to by
the courts who have heavily criticized the Kaiser arbitration
system.
However, this does not eliminate the inherent problem in
the system.
Neutral arbitrators in Kaiser cases are invariably retired
judges who are dependent, to some degree, on repeat business
from Kaiser to make a living. One would think that human
nature would almost require these judges to find for the
plaintiff in only the most egregious cases and to award very
conservative amounts of damages. The only way the system can
withstand this flow would be if Kaiser continued to use judges
as neutral arbitrators after they consistently awarded
significant verdicts for plaintiffs. However, many claim that
once a Kaiser neutral makes a large award against Kaiser, he
or she is almost always finished as a Kaiser arbitrator.
O. Damages Recoverable and Restriction on Damages in
Medical Malpractice Cases.
i. Generally plaintiffs can recover for injuries
and medical expenses and damages for wage loss,
pain and suffering and punitive damages.
Plaintiffs in medical malpractice actions are entitled to
recover the same types of damages that plaintiffs can receive
in other personal injury actions. This includes damages for
past and future medical expenses, past and future loss of
income, past and future attendant care needs and general
damages for emotional distress and pain and suffering, both in
the past and in the future.
ii. Strict limitations on the amount of damages.
However, in 1975, the California legislature passed MICRA
(the Medical Injury Compensation Reform Act of 1975) which
places extraordinarily strict restrictions on medical
malpractice cases that do not apply to any other type of case
in California.
iii. The $250,000 general damages limitations in
malpractice cases.
By far, the most serious restriction is the fact that a
plaintiff can only recover $250,000 for past and future pain,
suffering and emotional distress. This restriction is
absolute. If a jury awards a plaintiff millions of dollars in
emotional distress damages, which they sometimes do, the award
is automatically cut to $250,000.
If somebody has been paralyzed, lost a leg, lost their
eyesight or a loved one has died as the result of the
negligence a health care provider, they can only receive
$250,000 in general damages.
The California courts have given the MICRA $250,000
general damage cap about as broad an application as is
possible. It is has been held to apply to just about every
type of case filed against a health care provider or hospital,
even if one would not think that the case should really be
considered a medical negligence case.
For instance, the MICRA limitations apply when a hospital
has been found negligent in screening staff positions; when a
patient is injured as the result of an unsafe hospital
condition; and when a person develops AIDS as a result of
negligent transfusion by a blood bank.
The courts will generally rule that the MICRA limitations
apply when an injury somehow arises out of professional
services of a health care provider or hospital.
iv. MICRA and wrongful death cases.
If a person dies as a result of medical malpractice and
leaves many heirs behind, such as a spouse and children, the
total amount of money that the entire family can recover for
general damages is $250,000.
v. $250,000 single limit even if multiple doctors.
In a case in which a number of doctors and a hospital
combine to cause a plaintiff an injury, the plaintiff’s total
recovery against all of the doctors and the hospital is one
$250,000 general damage award.
vi. Exception: if plaintiff lives to receive an
award and later dies as a result of the
malpractice.
The only exception to the $250,000 general damage cap
occurs when a plaintiff receives a serious injury as a result
of medical malpractice and later dies. In that situation, the
plaintiff is entitled to his or her own $250,000 general
damage cap and the heirs, all together, can collect general
damages up to $250,000. However, the malpractice insurance
carriers normally attempt to get the heirs to dismiss their
potential case before they offer the dying plaintiff $250,000
or even close to it in settlement. The dying patient,
desperate to receive some money, will sometimes agree.
vii. Frequently general damage awards are less
than $250,000.
It should be noted that the $250,000 general damage cap
is, in fact, only a “cap;” frequently jurors or arbitrators
award less than $250,000 in general damages in a medical
malpractice case.
viii. Exceptions for intentional misconduct or
elder abuse.
Another way “around” the general damage cap is for a
plaintiff to establish that a doctor acted intentionally or
both negligently and intentionally or, in an elder abuse case,
a plaintiff must establish “reckless neglect.”
California courts have decided that in an elder abuse case
against a health care provider, a plaintiff is entitled to a
remedy of an award greater than the $250,000 general damage
cap for misconduct that is not mere medical negligence but
rises to willful neglect.
In the case of non-elder abuse intentional misconduct, it
is a little more unclear as to whether the $250,000 general
damage cap applies to the intentional misconduct. Clearly, in
the case of a health care provider who sexually abuses a
patient, the courts have found that, at least as to the sexual
misconduct, there is no $250,000 cap.
Before a plaintiff can plead punitive damages in a
malpractice case, the plaintiff must be able to establish a
substantial likelihood of prevailing. In these cases, courts
have held that most intentional misconduct cases are in fact
malpractice cases if they “arise out of the treatment
relationship.” Courts have not allowed the pleading of
punitive damages in those cases where the initial complaint is
filed. However, these decisions apply only to special
malpractice pleading requirements that are not part of MICRA.
Plaintiffs must be careful when attempting to obviate the
$250,000 general damage cap by establishing sexual or
intentional misconduct because it will cause problems in
recovering under a health care provider’s medical malpractice
insurance policy.
ix. Periodic payment for future damage awards under
MICRA.
In all personal injury cases other than medical
malpractice cases a person is entitled to a payment of award
for future income loss, medical expenses, attendant care needs
or general damages at the time the award is made by a judge,
jury or arbitrator.
However, under MICRA, future damage awards of $50,000 or
more against medical malpractice defendants can be paid over
time by the health care provider or their insurance company.
Thus, plaintiffs lose use of the money that should be due
to them at the time of their award and are frequently punished
because the actual payouts, when they are received, will be
worth less than they are at the time of the award because of
inflation. Obviously, $50,000 today is worth far less than
$50,000 was 30 years ago. The same will be true for a $50,000
payment 30 years into the future.
Also, it makes it very difficult for the plaintiff to
receive emotional closure in what can be very emotional cases.
Whenever the periodic payments are made, the plaintiff will
have yet another reminder of the ordeal. In fact, insurance
companies usually do not want to make payments over time
anymore than a plaintiff wants to receive them, so they will
use this MICRA provision to lower the settlement with the
plaintiff and pay it all at one time.
x. Abolition of the collateral source rule.
In every personal injury case other than medical
malpractice cases, a defendant, at trial, is not allowed to
introduce evidence of reimbursement of payments that plaintiff
may have received from their own insurance carrier, disability
carrier or any other source of benefits independent of the
defendant.
This is normally the rule because the health insurance
company or disability companies that pay those benefits are
entitled to get their money back from the plaintiff out of
their personal injury award and because as a matter of public
policy, courts have found that a plaintiff should not be
punished because he or she had enough foresight to purchase
insurance.
However, in medical malpractice cases the defendant can
introduce evidence of these “collateral” benefits paid to
plaintiff. As a result of this, the payors of those benefits,
for instance a health insurance company, can no longer file a
lien and recover the benefits out of the plaintiff’s
settlement or award.
This can have a particularly harsh effect on a plaintiff’s
claim. If a jury learns that the plaintiff is being, for
instance, fully compensated for their loss of income by a
disability company, they have no incentive to make a
significant award for future economic losses. However, if the
plaintiff, at some later date, loses the right to the
disability policy or the disability carrier goes out of
business, a plaintiff and a family can be devastated.
Further, this rule, along with the $250,000 general damage
cap, makes it virtually impossible for a person with a good
insurance policy and disability policy to ever recover more
than $250,000 in a medical malpractice case no matter how
gross the negligence or how severely injured the plaintiff.
The two exceptions to this collateral source rule are
Medi-Cal and Medicare. Evidence of Medi-Cal or Medicare
benefits cannot be put into evidence in medical malpractice
cases; however, Medi-Cal and Medicare both have very strong
statutory liens and will be reimbursed a large percentage of
the money that they have paid out once the plaintiff receives
an award in a medical malpractice case. Thus, again, a
plaintiff’s net recovery is reduced.
xi. Attorney fees.
Attorney fees in a medical negligence case are limited as
follows: 40% of the first $50,000 recovered; 33-1/3% of the
next $50,000 recovered; 25% of any recovery between $100,000
and $600,000; and 15% of any recovery above $600,000.
These fee limitations only apply to a medical negligence
cause of action and the court has specifically held that they
do not apply in a “hybrid” situation in which a plaintiff is
claiming both medical negligence and sexual or other
intentional misconduct. In those situations, an attorney is
free to contract with a client for any type of contingency fee
as long as it is reasonable and comports with the rules of
professional conduct for attorneys. The attorney fee
limitation, along with the other MICRA limitations and the
difficulty of winning malpractice cases, creates a great
disincentive for attorneys who would otherwise want to handle
malpractice cases.
P. Punitive Damages.
There are special rules for “pleading” punitive damages in
medical malpractice cases. Basically, before a plaintiff can
make a claim for punitive damages, he or she must establish a
“prima facie case” for punitive damages. At that point, a
punitive damage allegation can be added to the claim. This
essentially means that the plaintiff must present written
testimony under oath establishing that there is a “substantial
probability” that the plaintiff will prevail on the punitive
damage claim.
Otherwise, the law of punitive damages for medical
malpractice cases is the same as all other cases.
Under California law, if a plaintiff can prove that the
conduct of the wrongdoer was fraudulent, malicious, or
despicable, he or she is entitled to recover punitive damages
which are intended to punish the wrongdoer and provide an
example for the rest of society. The focus of this type of
case is generally on the wrongdoing of the defendant as
opposed to the injury to the plaintiff. The amount of
punitive damage will vary depending upon the heinousness of
the defendant’s misconduct and its economic status. The law
recognizes that large companies have to pay more money in
punitive damages to be adequately punished than small
companies or individuals.
Q. Claim for Loss of Consortium.
A plaintiff’s spouse can also sue and recover damages for
‘loss of consortium.” A spouse is allowed to recover damages
for the loss of society, comfort and care that result from the
injured spouse’s unavailability due to their injury. In order
to recover these damages, a spouse must be named as a party to
the lawsuit and must have been married to the plaintiff at the
time of the injury.
There are advantages and disadvantages to filing a loss of
consortium claim that should be discussed with an attorney
before filing.
R. Time Limitations.
i. Statute of limitations in malpractice cases is
complex and confusing.
Medical malpractice cases have their own special time
limitations. The rules that establish the statute of
limitations in medical malpractice cases are extremely complex
and confusing.
The actual statute that governs the statute of limitations
in medical malpractice cases states that a case must be
brought within three years after the date of the injury or one
year after the plaintiff discovers, or through the use of
reasonable diligence should have discovered, the injury,
whichever occurs first. Thus, if the plaintiff, through due
diligence, should have discovered injury from the malpractice
before the third year period then the statute of limitations
will run one year of the date plaintiff should have
discovered.
Since most cases of medical negligence are obvious from
the beginning, this means to be absolutely safe a medical
malpractice action must be brought within a year of the date
of the malpractice if possible. Although a plaintiff may
still prevail on the statute of limitations if he or she waits
more than a year from the date of the actual malpractice, it
will create a serious risk to the case because no matter how
valid a case the plaintiff has, how serious is his or her
injury, if the case is not brought in time, it will be
dismissed and plaintiff will be entitled to no damages.
Many people are confused by the “three years” language in
the statute. They just assume that they have three years to
bring a lawsuit. This is absolutely incorrect. If the
defense can establish that the plaintiff discovered, or
through the use of reasonable diligence should have discovered
the malpractice and resultant injuries sooner than three
years, and the plaintiff waits for more than one year from the
date of “discovery,” the plaintiff will lose the case.
The three years represent an outside date in which an
action may be brought (however, there are even exceptions to
the three-year rule and in some cases plaintiffs can bring
cases more than three years from the date of the malpractice).
But the statute clearly states that if there is earlier
discovery, then the lawsuit must be brought within one year of
the date of the discovery of the malpractice.
Because of the nature of medical negligence cases and the
complexity of the statute of limitations itself, there are
dozens of appellate court decisions in California on the
statute of limitations in medical malpractice cases.
ii. The three-year statute of limitations period
and its exceptions.
Although there is some disagreement in the case law, the
three-year statute of limitations begins to run from the date
that an injury from malpractice first manifests itself.
Injury has been defined as “the damaging effect of the alleged
wrongful act, rather than the wrongful act itself.”
Therefore, in some cases, a plaintiff can bring a medical
malpractice action long after the supposed three-year
“outside” time period.
There are many cases in which an injury does not manifest
itself within three years of the malpractice. For instance,
the three-year statute limitations will not bar a case in
which a physician ordered a chest x-ray but failed to read the
results which would have revealed a cancerous tumor and the
patient did not develop any symptoms in her chest for five
years. However, if the plaintiff, for no apparent reason, did
develop chest or lung symptoms, they have a duty of due
diligence under the law to investigate to see if malpractice
was the cause of these symptoms.
Further, the three-year statute of limitations can be
“tolled” (i.e., stopped from running) if the plaintiff can
prove fraud or intentional concealment or the presence of a
foreign body.
There is also some case law to indicate that the three-year statute of limitations can be extended in the case of
“estoppel,” i.e., circumstances in which the defendant misled
the plaintiff or somehow prevented the plaintiff from
discovering the medical negligence or the injury therefrom and
bringing the case sooner.
iii. The one-year statute of limitations period.
There is a distinction between the events which the start
the running of the one-year statute of limitations period and
the three-year period. The three-year limitation period is
triggered by the plaintiff’s injury, but the one-year period
begins on discovery of the harm caused by the wrongful act and
additionally requires the discovery of the negligence. In
other words, the one-year period will begin to run on actual
or “constructive” discovery by the plaintiff of his or her
injury and its negligent cause.
The “constructive” discovery portion of this rule is one
of the things that makes statute of limitations cases so
difficult for plaintiffs. “Constructive discovery” refers to
the time when the plaintiff should have discovered his or her
injury and its negligent cause by the use of “reasonable
diligence.” This means that a plaintiff does not actually
have to become aware that he or she was harmed by the
negligence of a doctor, it is enough if he or she should have
been aware.
Thus, the plaintiff does not have to be told by a doctor
or an attorney that there has been malpractice and that he or
she has been injured by it for the statute of limitations to
start running. Rather, a court may find that the statute of
limitations has run when the plaintiff first suspected, for
instance, a bad outcome from a surgery and that the bad
outcome may have been caused by a doctor. Some courts have
held that once a plaintiff begins to suspect that something
went wrong in his or her treatment, he or she has the duty to
begin an investigation, including seeking the advice of
attorneys to see whether or not there is a valid claim. This
is a wholly unrealistic standard for plaintiffs, particularly
if they remain in treatment with the doctor, but it is the
law.
Many people are shocked to learn that the statute of
limitations can begin running while they are still in
treatment. The only relief that continuing treatment gives to
the plaintiff is a “lesser” duty to discover malpractice. It
does not, however, eliminate the duty to discover.
iv. Intent to sue letters.
The statute of limitations for a medical negligence claim
only can be tolled (i.e., suspended) during the 90-day time
period required in an intent to sue letter. The law around
this aspect of the statute of limitations is also changing and
quite confusing. MICRA requires that defendant be served with
a “notice of intent to sue” before a lawsuit can be filed.
The 90-day letter only tolls the statute of limitations if
is mailed within three months of the date that the statute of
limitations is to run; however, when one cannot pin down a
date a of discovery so one doesn’t know exactly when a statute
of limitations will run, it is very unsafe for a plaintiff to
rely on a 90-day letter to stop the statute of limitations
from running.
Further a 90-day intent to sue letter only applies to
medical negligence causes of action. If the health care
provider is being sued for other torts, such as intentional
infliction of emotional distress or battery, different
statutes of limitations will apply, and the 90-day letter will
not toll the statute of limitations.
v. Minors.
There is a different statute of limitations for minors in
medical negligence cases than any other kind of case. Usually
a minor has until he or she turns 19 to bring a lawsuit.
However, in medical negligence cases, a case by a minor must
be brought within three years from the date of the alleged
wrongful act except when the minor is under the age of six
when the wrongful act occurred, in which case the medical
malpractice action must be filed within three years or prior
to the minor’s eighth birthday, whichever period is longer.
(Minors are still bound by the six-month claim statute in
cases against public entities. See below.)
vi. The one-year/three-year statute of limitations
only applies to medical negligence causes of
action.
In some medical malpractice cases, particularly cases
involving sexual abuse by a physician, a plaintiff will plead
a number of causes of action in addition to medical
negligence. These causes of action are not effected by the
one-year/three-year statute and most of them begin to run
within one year from the date of the discovery of harm with no
three-year outside limitation.
vii. Cases brought against government entities.
The statute of limitations in malpractice cases against
government entities are controlled by the California claims
filing statutes and not MICRA. Thus, in any case against a
government entity or employee, a claim must be brought within
six months of the date of accrual of the cause of action --
usually six months within the date of malpractice. The six-month claims statute is a trap for the unwary who believe
there is at least a one-year statute of limitations. Further,
sometimes a plaintiff or attorney will not even realize that
the defendant is a public entity. That is no excuse --
plaintiff and plaintiff attorney have a duty of due diligence
to discover whether defendant is a government entity.
There are exceptions to the six-month claim statute and a
plaintiff should consult an attorney even if they have waited
longer than six months from the date of malpractice to bring a
claim.
S. The Effect on the MICRA Limitations on the
Feasibility of Bringing a Medical Malpractice Action
and the Likelihood of a Fair Settlement.
i. MICRA limitations were intended to limit
victim’s rights.
The health care industry pushed through the MICRA
limitations through an extraordinarily intensive lobbying
effort and has maintained that effort to retain the MICRA
limitations. As intended, MICRA has had the effect of grossly
limiting the number of medical malpractice actions that are
brought in California and attorneys who are willing to handle
medical malpractice cases.
Unfortunately, the MICRA limitations, along with the
inherent difficulties in prevailing in a medical malpractice
case, have created a situation in which many righteous medical
malpractice victims are either unable to find attorneys to
handle their case or are grossly undercompensated when they do
bring a case and win.
ii. The $250,000 general damage cap unjustly
punishes the most severely injured plaintiffs.
The biggest problem with MICRA, particularly with the
$250,000 general damage cap, is that it unjustly punishes the
most severely injured and disabled malpractice victims. In
other words, if a person only suffered a mild to moderate
injury as a result of the malpractice, their damages might not
even reach the $250,000 cap and, aside from collateral source
and periodic payment issues, they will be fully compensated.
On the other hand, a person whose life was totally
destroyed by malpractice, lets say a non-working spouse who
has become a quadriplegic as the result of malpractice, will
only receive, maybe one hundredth of fair compensation since a
jury will be likely to award as much as $20,000,000 for
general damages in that type of case, but the award will be
reduced to $250,000.
iii. How insurance companies abuse the $250,000
general damage cap.
Further, the health care providers and their insurance
companies abuse the $250,000 general damage cap by not even
offering that much money in settlement in a clear liability
catastrophic injury case under the theory that they have
nothing to lose by offering, lets say, $200,000 for general
damages and forcing the plaintiff to trial where the plaintiff
will have to spend an additional $50,000 or more to increase
the award $50,000.
iv. The enormous disincentive for attorneys to
handle malpractice cases.
a. The financial risks of a malpractice case.
When you start with the premise that only 25% of medical
malpractice cases that are tried or arbitrated result in a
victory for the patient, add to that fact that the medical
malpractice case will cost (excluding attorneys fees) $50,000
to $150,000 to try or arbitrate and further add a $250,000 cap
on general damages which, for most malpractice victims would
be the total amount of money that can be awarded because they
have health insurance to pay medical bills and many do not
have any significant wage loss claims, one can quickly see why
an attorney would be hesitant to bring a medical malpractice
case when there is so little upside and so much downside.
This does not even take into account the fact that the
attorney’s fees will be limited to less than two-thirds of
what the attorney could earn on other, often easier, personal
injury cases.
Most medical malpractice victims cannot afford to pay for
their case costs; thus, if the case is going to be brought at
all it is because the plaintiff’s attorney advances the costs,
and those costs will not be reimbursed to the attorney if the
plaintiff loses. As previously mentioned, if the case is
tried, the case costs, with the rare exception, will be well
over $50,000 because of the number of experts it takes to win
a medical malpractice case and the huge amount of money that
they charge for their work.
Most medical malpractice cases do not settle early; thus,
even if there is a settlement before trial, case costs will
normally be over $25,000 and as high as $100,000 or more. A
further complication is the fact that under MICRA, the
attorney is only entitled to his or her fee after the case
costs are deducted from the client’s verdict or settlement.
b. The unlikelihood of an early settlement.
Add to this the fact that medical malpractice cases are
usually intensely litigated with a large number of depositions
and attorney time spent on a case. Even if an insurance
company wants to settle a case, or settle a case early, it
will sometimes not be allowed to because the defendant doctor
has the absolute right to refuse consent to settlement.
Doctors frequently do not want their reputations hurt and if
they think they can win the case, will push it through a
trial, with nothing financially to lose because the insurance
company will pay for any verdict rendered against them.
c. The plaintiff and plaintiff attorney are
grossly undercompensated.
Thus, a medical malpractice plaintiffs attorney will
frequently be asked to take on a case which they statistically
have only a 25% chance of winning if the case is arbitrated or
tried, or he or she will have to pay out an average of
$75,000 in case costs out of his or her own operating budget,
so that, if everything goes right at trial or arbitration and
the plaintiff receives a $250,000 award, after probably an
average of $75,000 in costs are deducted, the attorney will be
entitled to a fee about $55,000 and the plaintiff will only
recover about $125,000, sometimes for life ending or
destroying injury.
Thus, not only does the plaintiff receive a fraction of
the compensation that they should be entitled to, but an
attorney will have risked $75,000 to earn $55,000. The
average medical malpractice case through trial probably takes
about 750 hours to litigate; thus, the plaintiff’s attorney
has to risk $75,000 in a case in which he or she statistically
has a 75% chance of losing, to earn of fee of approximately
$73 an hour.
d. Why malpractice victims have so much
trouble finding attorneys.
This situation is obviously worse in a case where there is
not a major injury in which a verdict or settlement might be
substantially less than $250,000.
Thus, righteous medical malpractice victims sometimes have
to contact dozens of attorneys before they either give up or
can find an attorney to handle their case. Frequently, they
will not be able to find an attorney at all.
e. Will good attorneys still handle
malpractice cases after careful screening?
This is not all doom and gloom. There are very good
attorneys who still handle medical malpractice cases; however,
they will usually only accept cases in which there is some way
around the MICRA limitations such as intentional tort, sexual
abuse or elder abuse, or the liability in the case is
extraordinarily clear and the potential damage recovery is
more than $250,000 because the plaintiff has significant
economic losses in addition to general damages. The key from
a plaintiff’s attorney point of view is to assess the chances
of winning at the very beginning of the case to see if the
case will fall within the 25% of cases that win versus the 75%
of medical malpractice cases that lose. If the plaintiff
presents that type of case, the chances are greater that the
case will settle without a trial or arbitration and if it has
to be tried or arbitrated, the plaintiff has a least a 50-50
chance of winning. Thus, medical malpractice cases are
carefully screened by good attorneys.
f. Can attorneys without experience obtain
good results in malpractice cases?
Unfortunately, plaintiffs sometimes end up being
represented by attorneys without substantial medical
malpractice experience because, one, they do not know any
better or an attorney without medical malpractice experience
may not recognize the expenses and risks outlined above and
wrongfully believe that a medical malpractice case can be
settled easily without the outlay of great expense and time.
Many of these attorneys later drop the case when they
understand what they have gotten themselves into and the
plaintiff is left to try to find another attorney which may
be more difficult once the case is already begun because the
prior attorney may not have taken appropriate steps to work up
the case.
This is an unfortunately common set of circumstances.
g. What a person should do who believes he or
she has a valid malpractice case.
Any person who believes that he or she may have a valid
medical malpractice claim should consult an attorney before
deciding whether or not to proceed with the claim and should
attempt to, at least at first, find an attorney who
specializes in medical malpractice - - who will advise
honestly on the risks and benefits of pursuing a case. If a
plaintiff’s case is rejected by one attorney, the victim
probably should not give up; however, if a number of qualified
attorneys have rejected their case, it is probably with good
reason.
T. The Importance of Investigation In a Medical
Malpractice Case.
i. Review of medical records.
Medical malpractice cases have their own unique aspects of
necessary investigation.
The primary investigation will involve the receipt and
review of medical records. Most medical malpractice cases
rise or fall on the basis of what is included in the medical
records of the doctors involved in the alleged malpractice,
and doctors and hospitals involved in the prior and subsequent
treatment of the plaintiff.
Review of the medical records results in at least three
important challenges for the plaintiff.
First of all, medical records are extraordinarily
difficult to read, and at some point they must be read by
someone who is able to decipher the notes, even if that ends
up involving taking the deposition of who wrote the notes if
the notes appear at all critical.
Secondly, most medical records, particularly records of
hospitals, are not in any chronological order.
Progress notes will be in one section, nurses’ notes in
another, x-ray notes in a completely different section and
blood results in yet another section. To be able to analyze
adequately a medical malpractice case, someone reviewing all
these notes must put them in chronological order to be able to
develop what happened.
The importance of this exercise cannot be emphasized
enough. It is only by putting into chronological order all of
the records that someone reviewing the records will be able to
truly understand what happened to the plaintiff in the
hospital or during treatment and be able to, for example, find
inconsistencies in the notes wherein a doctor notes a normal
blood pressure on an examination at the exact same time when a
nurse notes a grossly abnormal blood pressure.
Third, the notes must be investigated with the eye toward
the possibility of missing or altered notes. Again, having
the notes in chronological order is the first step to finding
notes that should be present but are missing and inconsistent
notes which will lead an investigator to believe that the
notes have been altered.
If it appears that the records may have been altered,
plaintiff may want to consider hiring a handwriting analysis
expert to obtain the original records and, sometimes, records
from other patients made at a similar time to see if there
have been alterations in the records.
ii. Statements and testimony of nurses and office
staff.
In most circumstances, the nurses at a hospital will rally
around a hospital to defend a medical malpractice claim and
the same is true of nurses and employees of doctors in cases
involving outpatient treatment.
However, many hospitals and doctor offices have high
turnover and plaintiff may be able to find former employees
who will be willing to testify to acts of improper treatment
or inaccurate medical chart entries.
Even if the depositions of current employees have to be
taken, in a situation in which a number of nurses have to keep
their stories straight in order for a hospital to prevail, a
plaintiff attorney may still be able to turn up
inconsistencies between the stories of the various nurses
which will help create evidence of malpractice.
U. Settlement of Medical Malpractice Cases.
i.
Medical malpractice cases are difficult to
settle.
As previously mentioned, medical malpractice cases are
difficult to settle. In California, almost all doctors are
insured by “doctor-owned” insurance companies that are
committed to spending whatever it takes to win a malpractice
case rather than pay a settlement to a plaintiff. Further,
doctors are allowed to refuse consent to any medical
malpractice settlement and frequently do refuse consent even
if their attorney or insurance carrier urges otherwise.
ii. Breaking through the denial.
The only way for a plaintiff’s attorney to obtain a
significant settlement in a medical malpractice case is to
realize the dynamics as described above and make sure that the
doctor and insurance company understand the risk of not
settling and proceeding to trial.
How is this accomplished? It is not easy; however, we
have found that generally it is better to be open and
forthright from the very beginning of the case in terms of
what plaintiff’s experts intend to testify and the facts and
evidence which plaintiff believes will result in a verdict for
the plaintiff. The risk of this approach is that it gives the
defense even more of an advantage than it would usually have
to prepare a defense to defeat the claim; however, the risk of
not taking this approach is that considerable time and
sometimes an obscene amount of money will have to be spent on
preparing and trying the case which, by statistics, plaintiff
has only a 30% chance at best of winning.
iii. Understanding the unique way in which
medical malpractice insurance companies
evaluate claims.
Most personal injury claims are evaluated by claims
adjusters. This is only partially true in medical malpractice
cases. More significantly, the claims are reviewed first by
an outside medical consultant retained by the insurance
company and then by a board who reviews the claim made by
plaintiff and the report of the consulting physician.
If the insurance companies are left to their own devices,
this evaluation will take place without any input from the
plaintiff attorney other than the minimal information which
may be contained in the complaint or intent-to-sue letter.
The review will be based almost entirely on the medical
records, with maybe some consideration given to a statement by
the accused doctor.
Thus, the plaintiff’s version of the facts will not be
considered and the opinions of the plaintiff’s experts will
not be considered. In all but rare circumstances, this will
lead to an initial evaluation in favor of the defendant as
long as the defendant has adequate notes, and the doctor and
insurance company will become entrenched in their belief that
they will prevail in the case. This belief can be altered
through the discovery process, but it is difficult. The most
important event which can occur to alter this mindset is the
deposition of the defendant if plaintiff attorney can prove to
the satisfaction of the defendant, defense counsel and
insurance company, that the defendant’s chart notes do not
tell the true story of the case and that defendant is at risk
of being impeached and losing at trial.
If a plaintiff attorney chooses to not reveal many details
of their case at the very beginning, then the deposition of
the defendant will be the next opportunity to turn the case
around in the plaintiff’s favor for settlement.
The final opportunity will be expert witness depositions,
if plaintiff’s experts are highly qualified and convince the
defense attorney, insurance adjuster and defendant doctor that
there is a high risk of losing at trial.
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