Why Can’t I Find a Lawyer to Represent My Medical Malpractice Case? Part 2

  

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Part 2. How the Deck is Stacked

All the issues I mentioned in Part 1: The Basic Issues are made much worse and much harder by some really stupid legislation passed in California in the middle 1970s.
At that time there was a “medical malpractice crisis” in California. The doctors were threatening to strike and refuse to treat patients because of rising medical malpractice insurance premiums. The Legislature panicked. The medical malpractice insurance companies got greedy. The organization representing plaintiffs lawyers, the California Trial Lawyers Association, behaved stupidly. The result was something called the Medical Insurance Crisis Reform Act, or MICRA.

The purpose was to keep medical malpractice premiums low for California doctors so consumers would not be burdened by the cost of medical malpractice litigation. Of course, all the people who might be injured by medical malpractice case are consumers, so what that did was shift the burden from all consumers (so each paid a little) to consumers actually injured by malpractice (so a few pay a lot). The result of this legislation is as follows:

  1. Damages in medical malpractice cases are strictly limited. If a health care provider makes a mistake and cuts off the wrong leg, so that the healthy one is gone but the one with bone cancer still has to be cut off and you’re left with no legs, the damages for what that does to your life is limited to $250,000.
  2. If you are paralyzed by a surgery and burned over 90 percent of your body because the doctor was drunk, your damages for what that does to your life are limited to $250,000. The jury is not told of that limitation. Your lawyer can convince the jury that you are the victim of malpractice, the jury can decide the damage to your life is $2 million, and, after the jury goes home, the judge is required to reduce the damage award to $250,000.
  3. You can collect, in addition to that, medical expenses not paid for by insurance and loss of income not covered by disability, Social Security or any other source.
  4. Any award of damages over $50,000 can be paid to you over time without interest at the election of the health care provider’s insurance company. If you have a 25-year life expectancy and get your $250,000, they can pay you $10,000 a year. If you die after 15 years, whether from the malpractice that resulted in the award or not, the obligation to pay the $10,000 a year stops, and the insurance company keeps the money.
  5. Your ability to enter into an employment agreement with your lawyer is strictly controlled by statute so you can only enter into a fee agreement that was dictated by the medical malpractice insurance companies. It is a sliding scale, so the bigger the case, the smaller the part that goes to the lawyer. The fact that bigger cases usually require the lawyer to advance more costs, hire more experts and do a lot more work is not factored in.
  6. There are no such limitations on the insurance companies for the health care providers. They can spend as much as they want and hire the most expensive lawyers in the country if they want. They know they will win most cases because the juries are afraid to believe malpractice exists. The cases they lose are no big deal because of the limitations on damages.

As a consequence, medical malpractice insurance carriers only settle one kind of claim. They only settle cases where the injured person is going to have either ongoing, long-term medical expenses or a huge loss of income. If you are damaged so badly that you need 24-hour medical care, your case might settle. If you were a big earner who will never work again, there is a chance it will not be forced to trial.

The case that will never settle is the case of the retired person who was killed by medical negligence. The damages are limited to $250,000, and the insurance companies know that they win most of these cases anyway.

Let’s take the wrongful death of a 70-year-old man in great health with a wife of 40 years also in great health, who were enjoying their retirement. If some health care provider screws up and kills him, she is without her life partner. All of her plans and dreams for their retirement are up the flue. If the doctor ran the man down in the crosswalk, the case would settle. The automobile insurance company would be concerned that if the jury liked the widow and liked what they learned about the man, there could be a big verdict. Often, what generates settlements, is what could happen to either side if it is wrong about what a jury might do with any given case.

That element of uncertainty simply does not exist in a medical malpractice case, at least so far as the defense is concerned. Because of the $250,000 “safe haven,” the medical malpractice insurance company can (and will) try the case. If they win, they pay nothing. If the jury decides that it was malpractice, they get to come back after the jury goes home and have the verdict reduced to $250,000. Where the automobile insurance company may be looking at a very large verdict if it guesses wrong about what the jury will think, the medical malpractice insurance company has no such worry. It is grotesquely unfair.

By the way, this has not been good for medical consumers or the medical profession. Medical costs in California are not by any means less than they are anywhere else where these kinds of limits do not exist. No data suggest that the incidence of serious medical accidents is less in California than anywhere else. Medical malpractice insurance premiums are not less in California than most of the rest of the United States. As for consumers, medical insurance rates are not a bit lower here than they are across the country.

MICRA has been very good for medical malpractice insurance companies. One  such, formed in the '70s when MICRA passed, bought the entire hill that overlooks the Napa County Airport and in the '80s built a very nice home office building there. The company did not have to borrow any money. They bought the land and built the building out of current income.

But beyond that, this system has been a disaster for many doctors sued for malpractice. Because of the limitations on damages, their insurance companies have insisted on taking cases to trial where the conduct of the physicians can be most charitably described as questionable. There have been cases where the plaintiff claimed the doctor failed to properly treat something he or she had diagnosed. The defense position was that the diagnosis itself was incorrect, so the failure to treat had nothing to do with the outcome. Nobody, including the doctor’s own lawyer, said he did not make a mistake. Rather, the argument was about exactly what mistake the doctor made. This is not a good position for a professional to be in (especially in a small community) . Certainly the doctor never would have been in it were it not for the “safe haven” of the $250,000 limitation.

Finally, the cost of putting together a medical malpractice case is simply huge. Health care providers do things that would get someone sent to prison were it not in a medical setting. They inject people with poisons (it is called chemotherapy). They give people drugs that carry a felony drug-pushing charge if done on the street. They cut people up. They cut off limbs, cut out hearts, remove kidneys, take out parts of brains and so forth. Because of this, any evaluation of the actions of a health care provider requires expert testimony. Often, several experts are necessary because providers from different specialties are involved in patient care, especially in a serious case.

Not only does the plaintiff’s lawyer have to find and hire experts to testify for the plaintiff, he has to pay for the time of the defense experts in taking their depositions. Many charge $1,000 - $2,000 per hour. The plaintiff’s experts have to review all records and sometimes do research in the medical literature. They have to be paid for all that. The defense experts’ depositions typically last several hours each. The plaintiff’s lawyer has to pay for that time.

The upshot is that even a moderately complicated medical malpractice case can easily cost $50,000-$60,000 to prepare for trial. And that does not count anything for the time the lawyer must devote to the case while his or her overhead goes right on.

To sum up: Why can’t you get a lawyer for your malpractice case?

  1. Your case probably does not involve malpractice.
  2. Even if it does involve malpractice, the jury is not going to want to believe it and will look for excuses not to believe it.
  3. Even if the jury does believe it, the limits on damages nearly always means that the defense will take the case to trial.
  4. The lawyer has to be willing to put up $50,000-$60,000 to take a case that will most likely be lost or pay the lawyer poorly if it is won.
  5. The case will not do much good for the client. By the time the costs and statutory fees come out of that $250,000, the client does not see very much at all. The widow of the healthy 70-year-old mentioned earlier will find that she went through a lot of misery for not very much.

The biggest favor a lawyer can do is tell you no and tell you why.  If someone tells you you have a great case but they do not have time for it,  they are not being truthful. Lawyers always have time for great cases. Those are the ones that are fun.

 

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Dugan Barr has practiced law in Redding since 1967. He has tried more than 200 civil jury cases to verdict. He is married and has five children. The offices of Barr and Mudford, LLP, are at 1824 Court St. in Redding and can be reached at 243-8008.

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14 Responses »

  1. Great article, Dugan! I found it to be very informative and learned some stuff I never knew about.

    • What is so great about his article? Anyone reading this article will immediately be discouraged from filing any malpractice suit. He states that lawyers always take great cases while suggesting that average cases fall by the wayside. He states that damages always get reduced to 250,000.00 regardless of what a jury awards the injured party because juries are ignorant to the facts. Maybe what he considers a great case is a case that would warrant punitive damages on top of the 250,000.00 awarded. I do agree with him on one point and that is that the 250,000.00 dollar limit or cap was designed to discourage law suits period.

  2. Yes, that was a great article. I see why lawyers don't want to get involved in those cases.

  3. Dugan: Thank you. How are we ever going to get equitable affordable national health insurance if we do not get rid of trial lawyers and greed?

    • Martin,

      A good place to start with the process of getting equitable affordable national health insurance would be to stop the sloganeering. According to a study published by Kaiser Foundation, one of the larger players in the health care industry, costs associated with medical malpractice claims amount to less than 2% of total national health spending. Its source is the Congressional Budget Office. You can look at the article for yourself at .

      Consumer Reports also says the cost of medical malpractice litigation is less then 2% of the total. It also says that administrative and marketing costs of health insurance carriers use up 12% of the premium dollars we are paying for health care. I could not find any similar data for Medicare, but it would certainly make and interesting comparison to see if the one national health insurance program we do have has those kind of costs. The CR information is at

  4. Martin's question: "How are we ever going to get equitable affordable national health insurance if we do not get rid of trial lawyers and greed?" makes no sense. I'm not a lawyer and I don't have any connection to any malpractice victims, but the cause of malpractice expense is malpractice itself, not lawyers. The facts are that most malpractice goes uncompensated and any equitable system for compensating all the victims would drive costs up because many more people would be paid.

    The way to reduce malpractice costs is for the public and physicians to demand that the state medical boards start taking strong action to revoke or restrict the licenses of physicians who have histories of multiple malpractice events. The majority of malpractice payments are the result of the actions of a very small percent of all physicians. Stopping physicians with multiple payments will reduce costs and protect the public from further malpractice.

    By the way, there is a further skewing influence on California's malpractice payments. There was a $30,000 threshold for reporting payments to the state. That had dramatic results -- in California almost 10 percent of the payments were for exactly $29,999. No other state had more than a few payments for that amount. The real impact of the threshold seemed to be to drive what would have been small settlements up to that amount rather than reducing very many of what would otherwise been larger payments

    Robert Oshel, recently retired research director for the National Practitioner Data Bank

  5. As someone who devoted a summer in Sacramento to the liability crisis of 1975 when my liability policy went from $4,000 annual premium to $40,000, I am somewhat familar with the results. The $250K cap which Dugan Barr insists on repeating throughout his #2 recent article is for "pain and suffering" portions of judgements only. That fact is even buried in his verbiage How did he and Bob Simpson get almost a billion dollars from Tenent Heathcare and several area doctors insurance policies if the limit was $250K? Indeed, the settlement portion given the attorneys approximates $250,000 times the almost 1000 patients involved.

    This horrible outcome came because RMC Medical Staff failed to properly police themselves. Please recall that I "fired" three doctors during my year as Chief of Staff at Mercy. This was not a proud moment and it didn't make me any friends. Nor did it get headlines or make anyone rich, but it did protect the public and it was supported by the medical staff and eventually the court system. That is the way the system was supposed to work notwithstanding MICRA, Medical Board, concerned attorneys, able insurance companies and responsible health care organizations. Everyone makes mistakes, but few except doctors stand individually responsible. The future is less clear today. Hopefully, the dear patient will be able, like the jury, to determine fact from fiction in medical care no matter the payment system, the increasingly indifferent delivery system and those giving advice from different careers.

    Randall R. Smith, M. D.

    • I just came across this response from Dr. Smith (a man I have known and admired for many years). He is correct that the limitation of $250,000 is "only" for "pain and suffering". What that ignores is that "pain and suffering" is a shorthand term for what that does to your life. If a doctor screws up and cuts off the healthy leg of someone with bone cancer, and then has to take off the one with cancer, you get $250,000 for what being legless does to your life. If a blunder by a hospital technician causes you to fall off the examination table and break your neck so you are completely paralyzed, the limit is $250,000. In addition, you can recover the unpaid portion of your medical bills, if any, and any loss of income not covered by social security or disability insurance.

      The cases he references were suits brought against several physicians and a hospital because the physicians were scaring people into heart surgery (mostly bypass surgery and valve replacements) that they simply did not need. If you are interested, read the book "Coronary" by Stephen Klaidman.

      These were not malpractice cases. They were fraud and abuse of a dependent or elder adult cases. They were not subject to the limitations of medical malpractice cases. Fortunately, they are relatively rare, I think.

      Finally, and ironically, if Dr. Smith's malpractice premiums went down as the immediate result of the passage of this hugely unfair law, his case is unusual. State wide, malpractice premiums continued to rise until the voters passed insurance reform several years later. For the first time, insurers in California had to get regulatory approval in order to raise rates. Until then they could do whatever they wanted, and since the McCarren Act exempts them from anti-trust legislation, they could (and did) act in concert.

  6. One reason, not mentioned, that you can't get a lawyer to take your case - the biggest local hospital put them on retainer - so they cannot take cases because it would be a conflict of interest. If you want a skilled lawyer to sue Mercy or an affiliated Dr., best be prepared to go out of the area.

  7. Medical malpractice claims involve dealing with complicated legislation that only professional and experienced lawyers can handle. Some of the most common examples of medical malpractice include failure to properly diagnose a medical condition or to provide timely and proper treatment, or to perform surgical techniques correctly. These cases require proof of negligence by the health care provider.

  8. have a question, lets say that a female had to have a tracheostomy due to sleep apnea,,she left the hospital where it was done in really good condition,goin to another hospital for rehab, while there the doctor in charge decided he didnt know anything about the trach, and against her surgeons advice and her will,they put another 1 in. she automaticly started having breathing problems, and passing out because she wasnt getting air, due to the fact that the trach was put in the soft tissue and not the airway. so the very next day, she needed to be suctioned, and the nurse couldnt get the tube to go in cause her airway was growing up. they sent her home anyway,,less than 2 days later they had to rush her to er. cause she couldnt breath, had to have another trach put in with only a 20% chance to live.now she has a permanant trach, the original was a temporary trach. and she will have to live with this the rest of her life,, if the dr. who put the misplaced trach in,had done an xray he would have seen it wasnt in place, and prevented all the problems that she has now. there is more to this story, but to much to write on here. now why in the world is she having trouble finding a lawyer to take this case?she has to have other people to talk for her cause she cant speak on her own. wheres the justice?/

  9. Yet Dugan won't touch my sister in law's claim against her doctor for a botched bladder surgery. Her second doctor agreed and testified that the first performed the surgery improperly. Her Sacramento med mal lawyer took it and won a good settlement for her.

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