Medical malpractice is the negligence of any health care provider (doctor, nursing, hospital, chiropractor, etc.) which results in injury or death of a patient. In theory, it is merely another form of negligence (such as negligent driving) which requires expert witnesses to testify to the “standard of care” in the relevant medical community.

How common is medical malpractice?

According to the universally accepted 1999 study and report by the National Institute of Health, To Err is Human: Building a Safer Health System, medical malpractice kills at least 100,000 Americans every year – and that’s just counting doctor-caused (or iatrogenic) deaths which occurred in hospitals. This does not include millions of Americans who are “only” injured by doctors’ mistakes. This is far more than are killed by car accidents, AIDS or breast cancer – combined. By all accounts, this represents about 1 jumbo jet full of dead victims every day and represents a major preventable cause of death. We clearly have a major ongoing crisis caused by preventable human error.

What is special about California’s laws on medical malpractice? Since 1975, California has had a special set of laws which only apply to medical malpractice claims. This group of laws is commonly known as MICRA (Medical Injury Compensation Reform Act). MICRA is entirely pro-doctor and anti-consumer and represents some of most brutal anti-victim laws in the United States. Ironically in the face of concrete evidence of 100,000+ doctor-caused deaths every year, MICRA-type laws were imposed, during the “Bush era”, in other states as a supposed cure for the “medical malpractice insurance crisis”.

The major provisions of MICRA are:

- “Pain and suffering” damages are arbitrarily limited or “capped” at $250,000. This was the number picked by the doctors’ lobby in 1975 and has never been adjusted for inflation!

- Attorneys’ fees for victims of medical malpractice are limited according to a formula that guarantees that the victims’ lawyers will be paid less than an equivalent, less risky and simpler auto case. In fact, a California lawyer can face suspension or even disbarment for accepting a higher fee (even if a fully informed client wants to do this so that a lawyer will accept the case). This is why so few California lawyers are still willing to handle medical malpractice cases on a regular basis. Mr. Kapp is one of the few who still is willing to fight the fight.

- A shorter (one year) statute of limitations (deadline to file a lawsuit) than virtually any other type of injury or death case. (There is a shorter – six month – statute of limitations for any injury or death case against a public entity.) The medical malpractice statute of limitations is very complicated and requires an attorney to determine whether the case is still timely.

- We certainly invite victims and their families to write to our governor and state legislature and ask them to alter or eliminate MICRA.

What is the statute of limitations (legal deadline to file a lawsuit) on California medical malpractice cases?

The California medical malpractice statute of limitations is very complex and has many nooks and crannies. Generally speaking, a patient has a year (six months if you are suing a public entity) from the “date of injury” to sue; this may be extended for an additional 90 days if the patient’s lawyer serves proper and timely notices.

California does acknowledge that a patient-victim or the family may not “discover” the medical malpractice until later and that that may defer the running of the statute for a period of time. The application of this “delayed discovery” rule is itself very complex and should only be evaluated by an attorney or staff member well-trained in the nuances of this system; even many otherwise well-qualified and experienced lawyers may not appreciate the difficulties of applying this rule, which was may be critical to your case. If you can get to a lawyer within the first year, it is generally wise not to rely on this doctrine; however, if this is not possible, call the Law Offices of Howard A. Kapp and we will make a preliminary determination on this question.

What is the “standard of practice” (also known as the “standard of care”)? This is the dividing line between negligent behavior and non-negligent behavior for any professional. It is essentially analogous to a speed limit: if you are exceeding the speed limit, you can receive a ticket; however, if you are below the speed limit, you are legally blameless. The standard of practice is that behavior that a competent practitioner, in the real world, would do under the same or similar circumstances. The standard of care may be heavily contested and is “a fact” established by expert witness testimony; the jury ultimately decides which side’s expert is more credible and then decides whether the defendant health care professional complied with that legal standard. A medical professional who is “not negligent” is said to be “acting within the standard of care”; a negligent medical professional is said to “acting below the standard of care”.

What is different about my ability to get a lawyer to take my medical malpractice cases?

Because of the anti-consumer provisions of MICRA, the lower fees, and the extra complexities and risks of medical malpractice cases, few California lawyers handle medical malpractice on a regular basis. Mr. Kapp is one of the few lawyers who handles medical malpractice cases, not as an occasional sideline, but regularly. Unlike an “ordinary” auto accident or slip-and-fall case, you (the patient victim) essentially have to convince the lawyer to take the case. Mr. Kapp and his well-trained staff are fully prepared to quickly determine, in most cases, whether or not your case may have merit.

What can I do to get Mr. Kapp or another competent and experienced medical malpractice lawyer to take my case? First, tell us the truth to the best of your ability. Secondly, we will give you very specific information about gathering records for our review: follow those directions. Third, be cooperative and pleasant with our staff: Mr. Kapp will not accept cases if he anticipates that a client will be uncooperative or rude to the staff. Mr. Kapp has a moral and legal obligation to his staff to not add unnecessary to their stress; besides, once Mr. Kapp takes your case, he has to believe in it and the client.

Will my case settle? The answer is that medical malpractice cases rarely settle for a lot of reasons that have nothing to do with the merits of a given case and everything to do with a medical malpractice system that encourages doctors, hospitals and their lawyers to drag out litigation as long as possible. This office has long assumed that, when we accept a medical malpractice case, it is going to trial. Nonetheless, the courts will require formal settlement discussions (mediation) and our clients have a legal and moral right to know about settlement discussions and to participate in any final decision making.

How long will it take for my medical malpractice case to get resolved?

There just is no right answer to this other than “it depends”. Very few medical malpractice cases settle – not even the “clear cut” cases – and so most of them go to trial. Our rule of thumb is that a case takes “around” 2 years from the date of filing of the lawsuit, but this can be much longer.

What’s special about my claim against Kaiser? All cases against the Kaiser entities are treated as regular medical malpractice cases, with one huge difference: we do not sue Kaiser “in court”, but are compelled, by your contract with Kaiser, to proceed by way of arbitration. This means that your case will NOT be presented, in open court, to a sitting judge and a jury of your peers, but rather resolved, without the right of appeal (by either side) by a single “arbitrator” (who is usually a retired judge or a lawyer practicing in some unrelated field) selected from a Kaiser-related list. This system is universally understood to heavily favor Kaiser although we are, sometimes by pure luck, able to obtain a fair neutral arbitrator. Overall, we have to consider the extra risks involved in these types of compelled arbitrations in deciding whether to accept, or keep, your case.

I have a signed arbitration agreement with my doctor or hospital. What does that mean? An agreement to arbitrate means that you have waived your right to sue the doctor in court and must instead submit your claim to a “neutral” lawyer or retired judge agreed to by us and the doctor’s side. The arbitrator conducts the hearing in a private office and decides the case and there is no record or right to appeal by either side. Each side pays half of the arbitrator’s fee, which is commonly $450 per hour or more. Arbitrator’s fees can easily total $30,000 to $40,000 and are subject to virtually no restraint other than the arbitrator’s good will. This means that, instead of having your case decided by a real judge and a jury, you are stuck with this person’s decision. Generally, an agreement to arbitrate is so expensive that this will lead to any experienced attorney’s rejection of your case, unless you are prepared and able to personally pay for these additional expenses. That is, of course, exactly the reason that the doctor, at the urging of his or her malpractice insurance company, tricked you into signing away your rights.

Does Mr. Kapp have a special expertise in my area of medical malpractice?

Mr. Kapp has been practicing in the area of medical malpractice since 1987 and, despite his having no formal education in medicine, he has a working knowledge of many medical customs, terminology, principles and procedures. He does not pretend to know everything; he does know his limitations and when, and how, he needs to consult with medical experts on special or new topics. We find that we can preliminarily evaluate well over 90% percent of potential medical malpractice cases “in house” without the need of consulting other experts (which may have to be paid by the prospective client).

Since medical malpractice law itself is a “specialty” within the law, it is rare (if not practically impossible) for medical malpractice lawyers to limit their practices to become “sub-specialists” in specific areas of medicine. The legal principles governing medical malpractice claims are the same, regardless of the type of health care provided. In fact, the same legal rules for doctors apply to hospitals, dentists (dental malpractice), chiropractors, nurses, etc. In fact, recent legal precedents have applied the exact same legal principles to veterinarians (animal doctors)! Neither Mr. Kapp nor his staff are bashful about admitting that they need special help sometimes: that’s why they call it the “practice of law”!