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:
- 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.
- 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.
- 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.
- 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.
- 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.
- 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?
- Your case probably does not involve malpractice.
- 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.
- Even if the jury does believe it, the limits on damages nearly always means that the defense will take the case to trial.
- 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.
- 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.
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.