Blog Topic
Medical Malpractice
Mike Kelly and Doris Cheng: MICRA Unfair
Posted by: Spencer Pahlke
May 07, 2008
Our own Mike Kelly and Doris Cheng were recently published in one of California's leading legal publications, the Daily Journal. The title says it all: "An 8.5 Million Dollar Impact on Three Juries Who Were Not Told about the MICRA Cap."
In the last couple years, Walkup lawyers Mike Kelly, Doris Cheng, and Melinda Derish have tried three medical malpractice cases--and they won each time. Mike and Melinda recovered $3.162 million for a teenager who suffered permanent injuries to his leg due to misdiagnoses; Mike and Doris teamed up to win $3 million for parents who had lost their adult son after a doctor overlooked a subdural hematoma; finally, Mike and Doris again joined forces to win a Sonoma County man more than $9 million after doctors failed to treat a spine infection before it caused permanent paralysis. In the face of these horrific injuries, each jury did exactly what was asked of it--to offer appropriate compensation to those who have suffered injuries or lost loved ones. And, by all accounts, the juries did exactly what they were supposed to, awarding these families more than $15 million.
Despite the well-considered opinions of each of these jurors, who collectively spent a few months' time looking at the evidence and arriving at a verdict, these families had 56% of the verdicts taken from them. Why? Because of California's MICRA law.
As Mike and Doris explain in their piece, "In December 1975, California enacted legislation limiting general damages in medical negligence actions to $250,000 regardless of the nature, extent or permanence of the plaintiff's suffering." That means that, in the case of the young man who essentially lost his leg, but has more than 60 years of life in front of him, he can only have $250,000 for the pain he has suffered and will suffer. That comes out to about $4,167 a year, $11.42 a day, or $.48 and hour. Who would ever dream of giving up a leg for $.48 an hour?--no one, and California law shouldn't force that terrible result on people who are injured through no fault of their own.
As you can tell, this gets me a bit exorcised.
Other websites of ours focus on medical malpractice, including Kaiser injuries, birth injuries, and brain injuries. You can also read more about these three cases, particularly the $9 million Sonoma County verdict--that county's largest medical malpractice verdict--in our Spring 2008 issue of FOCUS on Torts.
MICRA mania runs wild -- Second District extends protection to auto insurers
Posted by: Michael A. Kelly
April 07, 2008
If thirty-three years of treating patients as second class citizens isn't ridiculous enough, the unfair and discriminatory protection afforded to medical malpractice insurance company has now been extended to immunize the auto insurers of Ambulances not involved in emergency runs! What is next? MICRA protection for the custodians who work for medical office building managers and fail to put out "Wet Floor" cones? Don't laugh, it is not that far fetched.
In Canister v. Emergency Ambulance Services (Cal.App. 2nd Dist.) 2008 DJAR 2739, the Second District broadly construed (1) MICRA's definition of "health care provider," (2) MICRA's definition of "professional services," and (3) MICRA's application to plaintiffs who are not intended recipients of professional services. The Canister court concluded that driving an ambulance during a non-emergency interfacility transfer is a "professional negligence" covered by MICRA!
The Facts: an EMT-I (not a paramedic) was operating an ambulance during the transfer of an arrestee, via ambulance, from one medical facility to another. A police escort was riding along and was injured when the ambulance suddenly swerved. The police officer suffered personal injuries, and sued Emergency Ambulance Services (EAS) based on negligent operation of the vehicle.
The Court of Appeal held as follows. First, an EMT is a "health care provider" per MICRA. Second, somehow, negligent operation of an ambulance in a non-emergency setting is "professional negligence"--not ordinary negligence--per MICRA. Finally, MICRA even applies as to people--like the police officer in Canister--who are not the intended recipient of the professional services.
The most frightening part of this ruling is that it stretches the already-faulty rationale for MICRA in the first place: to decrease medical liability insurance costs (of course, it has not decreased insurance rates, but has made insurance companies richer). The ambulance driven in Canister would likely have a regular auto insurance policy--and certainly not a medical liability policy. Consequently, even though auto insurance is not rising like medical liability insurance, auto insurers still get the windfall from the ruling: their liability iscapped, even though there is no reason for the cap.
Berkeley health professors call for increased doctor accountability and interconnectedness
Posted by: Spencer Pahlke
April 02, 2008
Stephen Shortell and Sara Singer, both professors of public health at the UC-Berkeley School of Public Health, wrote an interesting piece in a recent issue of the Journal of the American Medical Association (JAMA). Their point: to improve medical care, we need more accountability and a broader view of the medical field, one that takes input from all sorts of sources. In my mind, one of those sources is the deterrent effect of medical malpractice lawsuits.
(Before starting, I should point out that there is little lost love between the attorneys of injured people (like us) and the American Medical association (AMA). In 1986, the AMA and the American Counsel of Engineering Companies joined to found the American Tort Reform Association, which has excelled at stripping away the right of recovery from injured people.)
Shortell's and Singer's article is entitled, Improving Patient Safety by Taking Systems Seriously. To start the article, they throw out these sobering statistics: 98,000 patients die from preventable errors each year, with 270 dying every day due to hospital-acquired infections. The sources for these statistics are the Institute of Medicine and Centers for Disease Control-hardly fringe sources of information.
Shortell and Singer diagnose the problem with modern medical care by concluding that it fragments treating physicians and staff into differentiated units instead of cohesive components of a larger whole. Instead of working as teams, with sufficient communication and support, healthcare professionals are detached from one another. As the authors explain, places doctors in "functional silos;" indeed, "traditionally, it has been easier to think about hospitals and other delivery settings as a collection of departments rather than as a fully linked process of care." The result? The aforementioned 98,000 preventable deaths every year.
While the diagnosis might be correct, Shortell's and Singer's prescribed solution falls short of one of its logical conclusions. The authors point out that the system needs more accountability for persons who make mistakes, more reporting of medical mistakes, and even points out that both external and internal forces are necessary to shift the focus from separate compartments to an interconnected web of care. Adding up these parts, it seems that one conclusion must be that medical providers-like all other individuals-should be held accountable for their mistakes before a jury, especially if that mistake has maimed or killed a patient. Strangely, the authors make no mention of medical malpractice or how its deterrent effects have been hamstrung by California's anti-patient MICRA law.
It seems to me that true correction of the system must have as one of its parts fair medical malpractice laws that give the medical system useful feedback on how to alter its provision of care.
More unfairness from California's medical malpractice laws.
Posted by: Michael A. Kelly
March 25, 2008
Trustees for the government's two biggest benefit programs warned today that Social Security and Medicare are facing "enormous challenges," with the threat to Medicare's solvency far more severe than previously expected. This is yet another reason to change the unfair and discriminatory California Medical Malpractice laws. The reason being that, under these laws, careless and negligent health care providers get a "credit" against their personal liability for expected government benefits. If, as this news makes me worry, it turns out that the injured patient does not actually get the forecasted government benefits, the defendant medical care provider gets a credit for payments that in fact are never made.
Resources in the Social Security trust fund will be depleted by 2041. The reserves in the Medicare trust fund that pays hospital benefits were projected to be wiped out by 2019. The trustees warned that financial pressures will begin much sooner when the programs begin paying out more in benefits each year than they collect in payroll taxes.
The first year that payments will exceed income for Social Security will occur in 2017, just nine years from now, reflecting growing demands from the retirement of 78 million baby boomers. Frighteningly, Medicare is projected to pay out more than it receives in income starting this year.
Treasury Secretary Henry Paulson, one of the trustees, warned that the country was facing a fiscal train wreck unless something is done.
Simply put, thousands of California malpractice victims will be punished again when that train wreck comes to pass-when the supposedly guaranteed money runs out, the medical malpractice insurance companies will be laughing all the way to the bank!
