What Every Citizen Should Know About Medical Malpractice and the Law

by Howard A. Kapp, Esq.


It is universally accepted that medical malpractice is the third largest cause of death in the United States: an estimated 440,000 die every year due to "medical mistakes".  This is not merely the position of some greedy lawyers or some anti-doctor groups but universally accepted by the medical community itself.  Major government studies -- mainly from the National Institutes of Health -- have reached the same conclusion.  The government will even sell you the hard-cover book explaining these findings that should have been embarrassing to the entire medical community.


This disturbing fact is the result of a widely-accepted study done by the Harvard Medical School and published in the New England Journal of Medicine , perhaps the most prestigious medical journal in the world.  The second part of that report is published here


Statistically, about 50,000 Californians have been suffering malpractice-caused (or iatrogenic) deaths every year!  And that doesn't include the serious and life-changing injuries that doctors can, and sadly do, create through their own negligence.


The final phase of the National Institute of Health / Harvard study showed that there has long been a distressing mismatch between demonstrated malpractice and malpractice litigation: as they reported,


"Why so few injured patients file claims has not been widely researched. Many may receive adequate health or disability insurance benefits and may not wish to spoil long-standing physician-patient relationships. Others may regard their injuries as minor, consider the small chance of success not worth the cost, or find attorneys repugnant. Trial lawyers usually accept only the relatively few cases that have a high probability of resulting in a judgment of negligence with an award large enough to defray the high costs of litigation. A final possible explanation is that many patients may fail to recognize negligent care."


 Yet, the licensing agency for doctors -- the Medical Board of California -- receives only 600 to 700 legally-mandated reports of actually-paid medical malpractice claims (see page 6) annually.  Kaiser Hospitals -- which as a charity must report its statistics -- reported, for example, only 28 paid claims in 2012 (see Exhibit G) (the largest award that year was to Mr. Kapp's client), even though Kaiser provides medical care to over 11 million Californians.


We suggest that there are very special reasons why Californians are so unlikely to be compensated: most, Californians have been subjected to a textbook special-interest law that provides special protections only to negligent doctors.  In 1974, California medical malpractice insurance companies, which had little competition, a phony "malpractice insurance" and convinced the powerful doctors' lobby, the state legislature, and the governor to pass the outrageous MICRA -- the so-called "Medical Injury Compensation Reform Act of 1974."  MICRA has a series of protections for fully-adjudicate negligent doctors and literally nothing for the victims. 


No other special interest group has these special protections: for example, there are NO such limits against victims of auto accidents, legal malpractice or product failures.  Just patients.  Just patients who prove that their injuries were caused by the negligence of doctors.  And only those victims whose injuries, as found by a jury, were so serious that they determined that that victim was entitled to more than $250,000 in compensation.  Just, in other words, the most worthy and needy victims of the worst doctors.


MICRA includes, most notably, a one-year statute of limitations (as opposed to 2 years for all other similar claims), a firm and unbending cap on "pain and suffering" for $250,000 (which is not indexed to inflation) and special malpractice limits on attorneys' fees (for the victim/patients, of course, not on the fees of the negligent doctors' lawyers!), to ensure that victims will have a hard time finding a competent malpractice attorney.


The $250,000 cap is particularly well-known and notorious, in part because it does not limit lost earning claims. This law is designed as discriminatory against women (this was 1974, after all!), children, the unmarried, minorities, the elderly and low-income earners, who may not have the earning capacity of others. The $250,000 limit applies to all cases, even death cases.


It was as obvious in 1974 as it is today that this law is designed to force lawyers to reject cases, even very worthy cases, just because of this special interest law.  That was not an unexpected side effect, but the core purpose of this railroaded law.


Today, this means that a large percentage of worthy victims of malpractice find that their cases are rejected by lawyer after lawyer; even when such cases are accepted by the 18th or 19th lawyer offered the case, the victim has to wonder if this lawyer is incompetent or desperate.  Maybe this lawyer doesn't know why he or she is doing?  Isn't this the type of inexperienced-in-malpractice attorney that the doctor's insurance company would love to oppose?


Medical malpractice cases are always far more complex than other types of personal injury litigation, the risks involved in these cases (including the advancing of costs such as expert fees) and the fees are far lower.  They require that the lawyer understand the medical systems, human anatomy, the roles of the different medical specialties, and the unique language of medicine.  The reality is that very few patients have the very specialized legal and medical knowledge to understand the unique challenges of malpractice litigation: many, but certainly not all, have unrealistic expectations. 


The malpractice insurance companies know about the MICRA-specific limits on damages and fees and use their malpractice lawyers to delay, obfuscate, delay and generally run up the hours to ensure that the victim's lawyer's already double-limited fees are reduced, on an hourly rate, to make these cases uneconomic.  The insurance lawyers have, in many cases, virtually unlimited budgets to hire willing hired-gun experts to offer dubious credibility.  Unlike other forms of injury litigation, the doctor has the absolute right to veto any settlement, frequently just to delay the day that the doctor will have to face the inevitable reckoning before the licensing agencies, local privilege-granting hospital committees, or higher insurance rates.  Medical malpractice cases, unlike the ordinary car accident cases, are very, very likely to go all the way through trial, increasing risk, consuming far more time, money and energy and stress.


This is the reality for victims of medical malpractice in California.  This is why -- in addition to pressing your elected officials to change this anti-victim law -- your best bet is to get your case accepted by a qualified medical malpractice lawyer.  This lawyer -- like Mr. Kapp -- is experienced with the special problems with malpractice lawsuits and yet has concluded that your case meets all of the special requirements of this anti-consumer system. 


Not all is hopeless for future victims.  There are organizations that are seeking to change this bad law, from the victims' lawyers to the highly-respected consumer protection group that sponsored Proposition 46 in 2014, which would have at least adjusted the nasty $250,000 to inflation, but lost when the insurance companies and doctors outspent the victims' representatives by 20 to 1.  Mr. Kapp was particularly proud that his son, Michael Kapp, was the campaign manager in this worthy, but wildly outspent, cause.

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