Medical Malpractice Litigation In California:
The Hardest Case
© 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 of the case. 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 clear and convincing, it is most likely that the case can not be won.
Of all the areas in which the tort reform movement has been effective, the area of medical malpractice is the one of its greatest successes. We all want to trust the care that our own medical professionals provide and do not want to believe that our 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 difficulty of medical malpractice litigation is evident.
In my practice over the years we have handled a variety of medical malpractice cases involving 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 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, was released with a diagnosis of anxiety, 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.
*Failure to diagnose breast cancer where the mammogram and other diagnostic testing were misread and the family history was ignored.
*Plastic surgery cases, including cheek implants 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 terrible 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 VA hospital, causing the patient to suffer a stroke.
*Attempted suicide resulting in brain injuries from lack of oxygen to the brain of the adolescent patient who was not timely monitored or observed at the suicide prevention hospital which then altered the patient’s chart to hide the facts.
*Failure to provide nutrition to the middle-aged woman following gastric bypass surgery causing irreparable and severe brain damage similar to an alcoholic with profound dementia.
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 standard of care.”
The first defense to the standard of care issue is that unsuccessful results do not mean the error is unreasonable. A patient may suffer bad consequences from the medical procedure but the error causing those consequences may be considered reasonable under the circumstances. Another common defense is that the medical practitioner is not negligent because of the choice of one medically accepted method of treatment or diagnosis even if it turns out that another medically accepted method would have been a better choice.
The doctor’s lawyers defending the case will produce experienced experts who are almost certain to be of the opinion that the doctor’s conduct did not fall below the standard of care even though another method may have been a better choice. 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 untimely diagnosis, then it has not been proven that the healthcare provider’s negligence caused the harm. It would have happened anyhow.
In California, the overriding difficulty in handling these cases is not just the difficulty of proving malpractice, but the severe limitation in the amount of damages available to the harmed patient. In 1975, as a result of a fierce argument that 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. 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 forever be on dialysis. In fact, such a case was actually tried to a jury shortly after the law limiting damages came 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 sharply 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 is no longer able to work and was working successfully before, or if the patient will incur substantial medical expenses to be cared for and rehabilitated, these damages are still recoverable without the limitation in California. Unfortunately, however, this means that the elderly, who require more medical services, are often the ones left without legal representation when they are injured by these same medical services, because their losses are largely limited to damage to the quality of their lives. 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 perhaps most unfairly, 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. 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 that in death cases, defendants’ liabilities were reduced after verdict by an average of 51 percent as a result of the California law.
A more recent example of the terrible 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 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. Spigelman reports that the jury deciding the case awarded $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 in 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.
Medical malpractice is a significant issue in our society. A recent study of the Institute of Medicine estimates that medical errors in hospitals alone cause as many as 98,000 deaths per year nationwide. A study released in 2002 estimates that 8.1 million households in America have experienced a serious medical or prescription error. In California, the jury is not told that the jury verdict for non-economic damages will be reduced from the amount of the verdict to $250,000. Thus what the jury considers to be justice in the medical malpractice case is often reversed by the MICRA law.
Health care legislation is presently being considered both in California, on a statewide basis, and in the United States, on a federal basis. It is time for all Americans to have access to affordable health insurance. In the upcoming debate over such legislation, we must remember those patients who are the victims of medical malpractice.
Comprehensive reform of the healthcare system requires that the victims of medical malpractice receive full and fair compensation for their injuries caused by medical malpractice. 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 even 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.