Guy Kornblum & Associates

WHAT HAPPENS WHEN YOUR MEDICAL CARE PROVIDER
COMMITS MALPRACTICE?

By: Guy O. Kornblum, Certified Civil Trial Advocate, National Board of Trial Advocacy and Member, Million Dollar Advocates Forum

What happens when your doctor, hospital, dentist or other medical provider does not render the proper care and the results are not what was expected? Let’s first clarify the question. I am not talking about a result that is not perfect or as expected. Sometimes the risks of care carry with them results that are not the best – but that result is within the accepted risks assuming you have been told about those risks ("informed consent") and have gone ahead with the procedure or treatment aware of them.

What I am talking about is care that falls below the accepted standards and is regarded as "negligent" or "malpractice." What can you do at that point, and what can you be expected to recovery if successful in a lawsuit?

In 1975, the California Legislature, then responding to what was perceived as an "insurance crisis" for doctors and hospitals for their professional liability coverage, passed the Medical Injury Compensation Reform Act, which was a form of "tort reform" designed to lessen the potential for lawsuits to be brought against medical care givers who were negligent in their care. This statute, which has essentially remained the same since passed over 25 years ago, limited recovery for pain and suffering to $250,000 (essentially worth about $60,000 to day); allowed offsets if the victim had private medical or disability insurance or had a government program, such as worker’s compensation or Social Security benefits; and significantly limited a victim’s lawyer’s fees by capping the percentage which a lawyer could require from the usual 1/3 of a much less favorable structure overall (somewhere around 25%, and maybe even less for a large case).

The upshot of these reform measures is to make it more expensive and less financially beneficial to both the victim and his or her lawyer to pursue medical negligence claims. While some of these reforms may be applauded by the medical providers, they have resulted in victims of medical negligence being treated differently from other injured tort victims. The limitations and changes in medical negligence cases do not apply in ordinary tort cases, such as those involving automobile accidents or injury from defective products. In addition, the California Legislature made it more difficult for a victim of medical negligence to recover punitive damages in harsh cases.

Before any medical negligence case can be brought, the case must be evaluated as to a) whether the standard of care was, in fact, breached, b) if so, what damages were caused that would otherwise not have been caused, and c) what value or compensation is appropriate for that injury. The first issue, "breach of the standard of care," requires that a medical expert qualified in the particular professional field be prepared to testify SS based on a complete review of the case SS that the standard of care applicable was, in fact, violated by what the medical professional did or did not do, i.e., that malpractice occurred. This means that the expert must be willing to testify against a fellow professional. It has been suspected that there is a conspiracy of silence among medical professionals in any particular field. They belong to the same societies, go to the same conventions, work in closely connected medical facilities, and know each other personally.

Therefore, it is sometimes very difficult even in large metropolitan areas, to find someone willing to testify against another professional in the same field. Often, the victim’s lawyer must go elsewhere to find an expert who is familiar with the standards applicable in a similar community and who is qualified to testify. In addition, such experts, even if they are willing to testify, can be very expensive. They frequently charge several thousand dollars for the review and several thousand more for depositions given before trial and testimony at trial. This, coupled with travel and other expenses and the usual expenses of trial, make medical negligence cases very expensive for the victim’s lawyer who usually advances these costs.

The "causation" issue is also of concern. Even if a breach of the standard of care is proven, the victim must still prove that there is a casual relationship between the standard of care’s violation and the injury. This also may require expert medical testimony to make that connection. Suppose a surgeon is negligent in performing a spinal fusion. The physician argues that it was not his or her fault that the injury occurred because, unknown to that physician, the medical device used in the surgery was defective. Examples of this are the recent cases where total hip replacements have involved "defective" hip prostheses made with a coating that prevented a "solid" new replacement joint, which could then dislocate.

Or, if death occurred, the physician might argue that the physical condition of the patient was not strong enough to withstand the procedure. There is one case in which after back surgery, a patient fell in a convalescent home and had to have a second surgery; the defendants are arguing that his condition after the second surgery is nearly the same as before. They are claiming that the client’s condition is essentially no different now from his condition after the first surgery. Thus, no injury was caused by any wrongdoing, except for the fact that the client had to undergo a second procedure (which, of course, has some value but not the same as a permanent injury).

Cases such as these can be made into intensely and aggressively defended lawsuits which take time and money and create more stress for the already injured victim.