I recently settled a medical malpractice case for approximately 1.5 million dollars. While a good settlement always brings me a great deal of satisfaction in knowing that I have served yet another client quite well, it also turned my attention to an area of the law that is in dire need of legislative reform.
In the area of medical malpractice a number of antiquated laws were enacted in 1975, which can prevent a victim suffering terrible and debilitating injuries, from receiving full compensation for his/her injuries, and in some cases, from obtaining any compensation at all. These laws were enacted as a part of the Medical Injury Compensation Reform Act of 1975 ("MICRA"). Like many political labels, the name is a misnomer. It did not seek to reform compensation to victims, it sought to decrease insurance claims and awards against medical care professionals and institutions. The acronym "MICRA" is more well suited to stand for Medical Insurance Claims Relief Act. MICRA was enacted in response to the perceived statewide crisis in the availability and cost of medical malpractice insurance.
One such antiquated and unfair law created by MICRA, is a cap on damages for pain and suffering often referred to as "general damages" or "non-economic damages." [More specifically, these are damages for pain, suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary damage.] These damages are limited to only $250,000 dollars (see CA Civil Code §3333.2). Thus a person that has suffered brain damage, the loss of a limb, blindness, a shortened life span, or any other endless number of debilitating injuries due to a hospital's and/or doctor's negligence, may only ever recover $250,000 for his/his life long pain and suffering, even if several doctors and hospitals are at fault. [Note, a skilled and knowledgeable plaintiff's attorney might be able to find a loophole to get around this damages limitation, such as by being able to frame the legal causes of action as a common law battery (i.e., failure to obtain informed consent), or fraud.] Thus, if there are a combined number of 6 hospitals and doctors involved, they each will only have to pay about $42,000 to compensate the victim for his pain and suffering. Astonishingly, when the damages cap of $250,000 was enacted in 1975, it was not indexed for inflation. It was quite a trick for medical and insurance lobbies to slide that major omission under the door.
It should also be noted that in USA, generally attorney's fees may not be recovered. Thus, where damages are awarded for pain and suffering, such damages help cover the victim's attorney's fees. However, in medical malpractice litigation, because damages for pain and suffering are limited to $250,000, often there is little or nothing left over for the victim to cover his pain and suffering, after his attorney's fees are paid. Perhaps, this is one of the reasons, that as part of MICRA, severe limitations were also enacted an attorney's contingency fee rates. However, these restrictions are perhaps the most harmful and unfair aspect of MICRA on victims' rights. This is because it often prevents victims of medical negligence from even being able to find an attorney to represent him or her in the first place.
In particular, medical malpractice litigation is one of the most complex, expensive, time consuming and lengthy types of litigation. In many cases, a plaintiff attorney must be experienced and prepared to go up against several law firms with unlimited financial resources (as they are funded by insurance companies), when bringing a medical malpractice lawsuit on behalf of a victim of medical malpractice. Thus, such lawsuits are a great business risk, and require a substantial financial commitment from the plaintiff's attorney. However, because an attorney's contingency fee in a medical malpractice case is statutorily capped a level well below what an attorney usually receives, and because the total award a victim will receive is also somewhat limited by the $250,000 general damages limitation, more and more attorneys are refusing to take on such cases, because they leave the attorney under compensated for his time and risk. Thus, this is making it harder and harder, for the victim of medical negligence, to even find a plaintiff's attorney that will take on the case.
Another barrier to full and fair compensation for injuries created by MICRA is the "collateral source rule" (see CA Civil Code §3333.1(a)). For example, in medical malpractice litigation, counsel for the hospitals and doctors may introduce evidence of collateral sources of funds that may be available to a victim to pay his economic damages ("economic damages" or "special damages" include such things as medical expenses, and loss of wages and future earnings). Thus, if an injured patient happens to have medical insurance, the doctors and hospitals get the benefit of the patient's insurance. This is not usually the case. For example, in a motor vehicle accident case, or a product defect case, the injured party would be fully reimbursed for amounts spent in the past on medical care, and amounts that will need to be spent in the future, even if those costs are covered by the victim's medical insurance. This only makes sense, as the patient has been paying the insurance premiums, and thus the negligent party should not receive the benefit of those premiums.
There are still other unfair barriers to full and fair compensation for injuries in a medical malpractice case. For instance, unlike most other types of cases, the initial complaint in a medical malpractice case may not set forth a claim for punitive damages (punitive damages, also known as exemplary damages, are damages a jury may award to punish and/or make an example of a wrongdoer, where his/her conduct is sufficiently despicable - see CA Civil Code §3294). Rather, 9 months prior to the trial date, a plaintiff must bring a motion before the court, establishing that the plaintiff can state a viable claim for punitive damages and show that the claim is supported by competent, admissible evidence (see Code of Civil Procedure §425.13, and College Hosp. Inc. v. Superior Court (1994) 8 Cal. 4th 704, 719) . Because trial dates are often set within 12 months of the date a lawsuit is filed, this may prevent a litigant from having sufficient time to collect the evidence needed to prevail on such a motion. Thus, it is important that in such cases, plaintiff's counsel proceed diligently if it is suspected that there may be a viable claim for punitive damages.
There are yet other barriers to just recovery in a medical malpractice case. For example, in general, a medical malpractice case must be brought within only 1 year of the date of the incident (see CA Code Civil Procedure §340.5). Experienced and creative plaintiff's counsel may be able to find some exceptions, loopholes or creative arguments around this exception. However, in most other personal injury cases, the victim has 2 years from the date of the incident to bring a lawsuit.
Another extremely unfair limitation, is that in medical malpractice cases, the hospital or doctor is entitled to have the injury award to a victim to be paid in period payments, potentially over the estimated lifetime of the injured victim (see Code Civil Procedure §667.7(a)). If the victim happens to get in an accident or otherwise die early, the defendant may not be required to continue paying the monies to the victim's estate. This is extremely unjust to the victim's spouse, children, or others who may have been dependent upon the decent for their financial support.
In conclusion, legislative reform of MICRA is severely needed. MICRA contains a number of outdated and unjust statutes that can prevent a victim from receiving full compensation for injuries, or from receiving any compensation at all. Unfortunately, it seems there is a false and widespread perception, that frivolous medical malpractice litigation is the reason for the high cost of medical care. However, it that is indeed the case, then the laws should only dissuade frivolous litigation rather than prevent an injured victim from obtaining full compensation for injuries. It seems that what is needed for legislative reform, is for a media campaign to present to the public, how egregiously injured victims of medical malpractice, whose injuries were the result of being indifferently treated like an piece of livestock being herded through the managed care system, are not able to obtain full compensation for their injuries due to unfair statutory damages limitations. To date, medical in and insurance lobbies have been all too successful in impairing injured patient's rights.
If you are interested in consulting with a medical malpractice attorney, or would like more information on the law, please see http://www.oclawyer.net/Medical-Malpractice-Negligence/
