Medical Malpractice Litigation In California:
The Hardest Case
(Updated Oct. 2014)
� David L. Goldin, J.D., M.B.A.
Over the years my office has handled numerous medical malpractice cases, virtually all of which were concluded successfully for our clients. We have obtained six and seven figure money recoveries for our clients. The reason for the success is simple: We do not handle medical malpractice cases unless the evidence of the malpractice is clear and convincing from the outset. The reason for this is simple too, in California the most difficult cases are those involving medical malpractice. If the evidence of medical malpractice is not largely dispositive from the start, it is most likely the case cannot be won.�
Of all the areas in which the tort reform movement has been involved, medical malpractice litigation is one of its greatest successes. We all want to trust the care of our own medical providers; we do not want to believe our own doctors and treaters make serious mistakes. Couple the respect for healthcare professionals with the occasional contempt and derision of lawyers and their clients, and the limitation of damages, as discussed below, makes medical malpractice litigation in California the hardest case.
In my practice over the years we have handled a variety of medical malpractice cases, many of which involve tragic injuries to patients caused by their healthcare providers. Examples of some of our clients� medical malpractice cases are:�
*Surgery to remove a tumor undertaken at the wrong level of the lumbar spine followed by an untreatable virulent infection resulting in death of the elderly patient.
*Wrongful death caused by an inordinate delay in treatment by the paramedics who showed up at the scene without proper resuscitation equipment leading to the death of the heart attack victim.�
*Undiagnosed brain cancer which showed up on a CT scan never read by the treating doctor, where the elderly patient also fell off the gurney while unattended.�
*Failure to diagnose the middle-aged patient who came to the emergency room complaining of shortness of breath and shooting pains in his arm, with a family history of heart disease, and who was released from the hospital with a diagnosis of anxiety. Shortly thereafter, the patient suffered a heart attack at home, and ultimately required a heart transplant.�
*Kidney failure where the laboratory test showing the patient�s diseased condition was never read by the treating physician.�
*Transplant of cancerous kidney into young (30s) patient without determining or disclosing the true condition of the kidney.
*Failure to diagnose breast cancer where the mammogram and other diagnostic testing were misread and the family history was ignored.�
*Plastic surgery cases, including one in which a patient�s cheek implants were inserted upside down and in the wrong place.�
*Improper injection of medication subcutaneously into the client�s thigh, rather than intramuscularly, resulting in skin necrosis and scarring.�
*A caustic acid administered by a physician�s assistant into the patient�s ear canal during an ear tube replacement procedure causing chemical burns to her external auditory canal and perforation of her ear drum.�
*The wrong medication, Clonidine instead of Colcacine, given to the patient following knee surgery at the hospital, causing the patient to suffer a stroke.�
*Attempted suicide resulting in brain injuries from lack of oxygen (anoxia) to the brain of the adolescent patient who was admitted to the suicide prevention hospital for his own safety and thereafter not timely monitored or observed. The hospital also altered the medical records.
*Failure to provide proper nutrition to a middle-aged woman following gastric bypass surgery causing severe and irreparable brain damage similar to an alcoholic with profound dementia.
*Deprivation of oxygen to agitated patient in the hospital on a ventilator who was administered anesthetics (propanol) to paralyze the patient so he would not move during an MRI scan, and then failing to provide oxygen to the patient after he was paralyzed resulting in anoxia to his brain.
From the outset, in all these cases there was clear and convincing evidence of medical malpractice. Nonetheless, it goes without saying, these cases are hotly contested by the defense which hires competent experts on the defense side to dispute liability, causation and damages. Each of these issues, liability, causation and damages, has rules and standards the violation of which must be proven by the injured patient. The basic test of liability of healthcare professionals is whether the medical treater fails to use the level of skill, knowledge and care in diagnosis and treatment that other reasonably careful medical practitioners would use in the same or similar circumstances. This is sometimes referred to as the �the standard of care.��
The first defense to a claim of violation of the standard of care is the rule that unsuccessful results do not mean the error is unreasonable. This makes sense. A patient may suffer bad consequences from the medical procedure and the error causing those consequences may be reasonable under the circumstances. Another common defense is the medical practitioner is not negligent by choosing one medically accepted method of treatment or diagnosis even if it turns out another medically accepted method would have been a better choice.�This also makes sense so long as the alternative method is truly "accepted."
The doctor�s lawyers defending the case will produce experienced experts who are almost certain to be of the opinion the doctor�s conduct did not fall below the standard of care. This is inevitable due to the natural inclination of one doctor to help another. In all but the most clear and convincing departures from the standard of care, the jury will likely view the defense experts to be as convincing as the experts testifying for the patient who was harmed by the medical procedure. Under these circumstances the patient loses because the patient has the legal burden of proving the standard of care was not met.�
Causation in turn requires the injured patient to prove that failure of the medical professional to meet the standard of care is a �substantial factor� in causing the harm to the patient. As defined in the law:�
�A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.��
For example, in the failure to diagnose cases, if the patient would have had the heart attack anyhow regardless of his not being diagnosed at the hospital on a timely basis; if the patient would have lost her kidney anyhow regardless of the failure to read the lab report; if the patient would have suffered the same effects from the breast cancer regardless of the untimely diagnosis, then it has not been proven the healthcare provider�s negligence caused the harm. It would have happened anyhow.
In California, the severe limitation on the amount of damages available to the harmed patient is the final �nail in the coffin,� often precluding representation of the patient in medical malpractice litigation. In 1975, as a result of an overblown argument doctors could no longer afford malpractice insurance in California because of litigation, the California legislature enacted a limitation of $250,000 on what are commonly known as �pain and suffering� or non-economic damages. Civil Code Section 3333.2g.
Under the Medical Insurance Compensation Reform Act (MICRA) of 1975, no matter how serious the violation of the standard of care, or the injuries to the patient, the most any patient can recover for non-economic damage to her or his quality of life (synonymous with �pain and suffering�), is $250,000. If the doctor takes out the wrong kidney, removing the non-cancerous kidney by mistake, compensation of the patient for damage to her or his quality of life is limited to $250,000. This limitation applies even though the remaining cancerous kidney must be removed and the patient will be on dialysis for the rest of her shortened life. In fact, such a case was actually tried to a jury shortly after the MICRA law limiting damages went into effect, and the multi-million dollar verdict of the jury was, in accordance with this law, reduced to $250,000.
Few clients or attorneys can afford to pay the costs of these lawsuits where the maximum damages recovery is $250,000. Expert medical witnesses often charge hourly fees ranging from $500 an hour and up, with minimums for half day and daily testimony reaching $5,000 to $10,000. No matter how bad the malpractice, it is simply uneconomical to pursue a case with costs of $100,000 and more, where the maximum amount of damages is $250,000. Another disincentive to attorneys handling these cases in California is that attorney fees in medical malpractice cases are seriously limited by the MICRA law.
Due to the rising cost of goods and services from 1976 to the present, based on the Consumer Price Index, prices today are currently about 3.72 times what they were in 1976 (CPI of 55.8 in January 1976 to 207.784 in June 2007 = 3.724). Accordingly, to keep pace with inflation, the MICRA cap would need to be increased by a comparable percentage from $250,000 to more than $930,000.�
If the injured patient was working successfully before, and is no longer able to do so, or if the patient will incur substantial unreimbursed medical expenses to be cared for and rehabilitated, these damages are still recoverable in full in California. However, if the patient is no longer working at the time of the medical malpractice, or has no significant unreimbursed medical expenses, the patient is limited to the MICRA cap of $250,000.
This means the elderly, who likely receive medical care paid for by the public, such as Medicare, and who were not working at the time of the medical malpractice, are often left without legal representation to recover for the medical malpractice. Their damages are largely limited to the destruction of the quality of their lives, for which the most they can recover is $250,000. Due to the complexity of these cases, attorneys often cannot afford to handle such a case. Similarly, the housewife or mother who does not work outside the home for compensation is less likely to be able to pursue her legitimate medical malpractice case because she may not have suffered any loss of earnings, and is limited to recovery of $250,000.�
The surviving family whose loved one has been killed by medical malpractice, is limited to recovery of $250,000 in a legal action for wrongful death, unless the decedent was gainfully employed. Typically, the families of children killed by medical malpractice are limited to a maximum recovery of $250,000 for loss of their child, regardless of the facts. How would you feel if your child was killed by preventable negligent healthcare, and you were limited to compensation of $250,000 for your loss?
A Comprehensive study by the Rand Institute for Civil Justice examined 257 plaintiff verdicts in medical malpractice trials from 1995 to 1999. The Rand report,�Capping Non-Economic Awards in Medical Malpractice, California Jury Verdicts Under MICRA, found in death cases, defendants� liabilities were reduced after verdict by an average 51 percent as a result of the California law.�Under MICRA, the verdict of the jury for the death of the family�s loved one is limited to $250,000, regardless of the amount of damages for wrongful death provided by the jury in its verdict.
A more recent example of the unfairness of limiting non-economic damages to $250,000 in California is one of the stories featured in �SiCKO,� the documentary by Michael Moore. This case was handled by an excellent San Diego medical malpractice attorney, Kenneth Sigelman, whose report of the facts and law is shocking. Dawnelle Keys� daughter, Mychelle, became sick with a fever of 106 degrees, and was vomiting, lethargic, and having difficulty breathing. Dawnelle called 911 and Mychelle was taken by paramedics to Martin Luther King Junior Medical Center (�MLK�), a Los Angeles County facility closest to Dawnelle�s home. Dawnelle was insured by Kaiser and the Kaiser doctor convinced the resident at MLK that it was not necessary to obtain blood tests or administer antibiotics before transferring Mychelle to Kaiser. Mychelle remained at MLK for three hours with no diagnosis or treatment.
By the time Dawnelle was finally transferred to Kaiser, she was dead within 30 minutes of arrival due to sepsis (overwhelming infection). The bacterial organism that killed her was sensitive to penicillin or any other broad spectrum antibiotic but none was administered.
Mr. Sigelman reports the jury deciding the case provided $1,353,000 to Mychelle�s mother, Dawnelle. All of the verdict amount, except $3,000, was for non-economic damages. The court in accordance with the MICRA law reduced the verdict to $250,000 for non-economic damages. The case was appealed first to the Court of Appeal, then to the California Supreme Court, and both courts upheld the reduction of the verdict for Mychelle�s death to $253,000 ($3,000 for economic damages and $250,000 for non-economic) after nearly seven years of litigation, due to MICRA.�
Medical malpractice is a significant issue in our society. A recent study of the Institute of Medicine estimates medical errors in hospitals alone cause as many as 98,000 deaths per year nationwide. A study released in 2002 estimates 8.1 million households in America have experienced a serious medical or prescription error. In California, the jury is not told the jury verdict for non-economic damages will be reduced from the amount of the verdict to $250,000. What the jury decides in its verdict is required to do justice in the medical malpractice case is often gutted by the MICRA law.
As of 2008, health care legislation is presently being considered both in California, on a statewide basis, and in the United States, on a federal basis. In California, the $250,000 cap on non-economic damages, together with the limitation on attorney fees, keep large numbers of those injured by medical malpractice from gaining access to the courts because the litigation is unaffordable. Simply stated, based on present day difficulties as described in this article, medical malpractice litigation in California is truly the hardest case.
Update in Support of Proposition 46
I wrote this article in 2008. I have made some edits to the article to make it clearer; however, my purpose in revisiting the article is not to make these revisions. On November, 4, 2014, less than one month from now, California voters will decide if it is acceptable to increase the limit on medical malpractice verdicts to allow for inflation. The $250,000 limit on general damages for past and future physical pain, mental suffering, loss of enjoyment of life, disfigurement, physical impairment, inconvenience, grief, anxiety, humiliation and emotional distress, is not only unfair from the standpoint of the damage done by medical malpractice, it is also unfair in applying the $250,000 limitation of the 39-year-old 1975 law, known as the Medical Injury Compensation Reform Act, or MICRA, to medical malpractice taking place today.
$250,000 in 1975 is far different from $250,000 in 2014.
One easy way to calculate the effect of inflation over time is the inflation calculator provided by Bureau of Labor Statistics which offers an instant gage of inflation by comparing the consumer price index at different points in time. Based on the inflation calculator, $250,000 in 1975, has the same buying power as $1,105,260.22 today.�
In other words, the patient who today receives a jury verdict for general damages resulting from medical malpractice in excess of $1 million, is receiving less than� 23% of the amount authorized by the California legislature in 1975 ($250,000 divided by $1,105,260 equals 22.619%).
Our common experience in 1975 (for those of us who were there then) is shown by the statistics as to the cost of various goods. For example, the cost of a gallon of gas in 1975 was $.44; oil costs $13 per barrel; the cost of a first-class stamp was $.10 ($.13 on 12/31/75); the average cost of a new car was $4,250; the cost of a dozen eggs was $.77; the cost of a gallon of milk was $1.57; and
McDonalds regular hamburger cost an average of $.32, and a Big Mac cost an average of $.70, both in the U.S. and overseas.
Events in 1975 also show how long ago that is. 1975 marks the end of the Vietnam War; New York City avoids bankruptcy when President Gerald R Ford signs a 2.3 billion dollar loan to the City; Jimmy Hoffa, ex-Teamsters boss, disappears (never to be seen again); Patti Hearst becomes most wanted and is arrested for armed robbery; Bill Gates and Paul Allen develop the BASIC program for the Altair 8800; the name "Micro-soft" (standing for micro computer software) and �Microsoft,� become registered trademarks. BIC launches the first disposable razor; Saturday Night Live debuts on NBC; Mohammed Ali beats Joe Frazier in the "Thrilla in Manila"; Jaws, Young Frankenstein, Godfather II, One Flew Over the Cuckoo's Nest, are some of the popular films released; and Tiger Woods, Angelina Jolie, and Kate Winslet are born in 1975.
But there has been no change since 1975 in the maximum amount patients injured by medical malpractice can recover in general damages from the doctors and other healthcare providers who negligently hurt them.
This November, the voters will decide if the $250,000 limitation on general damages should be increased to take account of inflation.�Proposition 46�seeks to increase the $250,000 limitation, in effect since 1975, to the same�amount today as in 1975, adjusted for inflation.
I do not consider myself to be an expert in medical malpractice litigation; my specialty is brain injury litigation, from whatever source. But if there is an honest reason not to provide an increase in the limits to take account of inflation, I would like to hear it. There is every reason to increase the limits in order to more fairly compensate the victims of the most serious medical malpractice, and make everyone safer.
Liability of healthcare providers should not be diminished by the artificial protection of the $250,000 limitation which was arguably unfair in 1975, especially to the patients most seriously harmed by medical malpractice, and today is a great injustice. Healthcare providers should not be given an irrational limitation on compensation to the very victims of their most serious preventable mistakes. Full compensation, or at least compensation of $1,105,260, the inflation adjusted amount today of $250,000 in 1975, will save lives and offer more meaningful compensation to those killed or badly injured by medical malpractice.
California insurance companies, such as Doctors Company and Norcal Mutual, and health care plans, such as Kaiser, are making large profits by limiting the liability of healthcare providers for serious medical malpractice. They know they are protected from liability for general damages in excess of $250,000, no matter how serious the injuries suffered by the medical malpractice victims. This, no doubt, also causes greater carelessness on the part of the healthcare providers who know exposure to damage caused by them is severely limited.
The healthcare�providers are not the victims. The patients harmed by the failure of their medical team to meet the�standard of care are the only victims. If you watch the ads repeatedly appearing now in the media, you would think a medical malpractice case was easy pickings for greedy�lawyers. In fact, medical�malpractice litigation in California is the hardest case.
Attorneys who take on the representation of these patients and their families, will go broke quickly if the malpractice is not clear and convincing from the outset of the case. Just ask an honest�medical malpractice defense attorney (tell her or him you won�t tell anyone).
Healthcare providers and their insurance companies should not be allowed to deprive the patients harmed by their malpractice of the�compensation the jury in�its verdict�has�provided. The jury has�heard�and seen all of the evidence, and observed the demeanor of the witnesses at trial, before agreeing to the verdict. America still has the finest judicial system in the world. Although there are rare failures of the jury system, as Thomas Jefferson said, �I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.�
We are all responsible for our negligent conduct, doctors and healthcare providers not excluded. No matter who we are, we must all be accountable for the damage we cause others by our carelessness. This is America.