Recently in Malpractice reform Category

The Medical Injury Compensation Reform Act or MICRA was enacted in 1975 by pressure from doctors in California wanting to limit the amount of damages victims of medical malpractice could obtain from lawsuits.  This limits the amount of money a victim of medical malpractice in California can obtain for non-economic damages, including emotional distress and pain and suffering to $250,000.  Since its introduction, tens of thousands of patients injured by preventable medical errors have been denied just compensation for their injuries.  

Although this creates a challenge for victims of medical malpractice, there are still additional resources available.  And while MICRA creates a difficult challenge for victims of medical malpractice in California, there are other states that are far more excessive with their limitations on damages.  For example, Virginia limits the total amount a victim of medical malpractice can recover for economic, non-economic, and punitive damages to $2 million.  Indiana limits the total amount for economic and non-economic damages to $1.25 million.  If a birth injury victim in California was awarded $7 million for economic damages, that same victim in Indiana would only receive $1.25 million to cover the same damages.   

Although non-economic damages in California are limited to $250,000 for medical malpractice victims, there is no cap on economic damages.  Economic damages include a lifetime calculation of lost wages and medical care for the victim of medical malpractice.  If a child suffers a severe and permanent birth injury such as cerebral palsy, although MICRA limits his or her non-economic damages to $250,000, there are still economic damages that must be calculated.  How much does it take to provide medical care for this individual for the rest of his or her life? Does this victim require a full time care giver?  How much lost wages would this victim be expected to lose for a lifetime of being out of work?

The cost of living has gone up dramatically since 1975 and while the $250,000 for non-economic damages has substantially decreased in value when factoring in the cost of living, the cost of medical care has increased dramatically, so the economic damages produce sizable damages for victims of medical malpractice.  

Taking the cerebral palsy birth injury example from above, this victim will likely need full time medical care and resources for the rest of his or her lifetime.  Full time medical care may require a full time care giver to handle daily routines including getting dressed, bathing, and feeding.  Also, medication, therapy, and doctor visits will likely be required.  The amount of medical care and resources necessary to take care of a severe cerebral palsy birth injury victim may cost millions of dollars over the victim's lifetime.  There is also the amount of lost wages the victim will lose over a lifetime and this must be factored into the economic damages as well.  Economic damages are the reasons why a medical malpractice victim may recover damages into the millions when MICRA places non-economic damages at a maximum of $250,000.   

If you or someone you love has been the victim of medical malpractice, you should immediately consult with a medical malpractice lawyer who is also a licensed physician, such as Dr. Bruce G. Fagel.  The consultation is free and if we take on your case, there is no fee unless we win your case.  

Governor Jerry Brown signed a law requiring private accrediting firms to inspect outpatient centers at least once every three years, including surprise inspections.  The bill also requires these accrediting firms to demand improvements or revoke certification if a surgery center does not meet the proper safety standards.

The outpatient surgery centers include medical facilities that perform Lap-Band and liposuction procedures.  The author of the bill, state senator Curren Price Jr. (D-Los Angeles) became interested in this bill after singer Kanye West's mother died from liposuction and breast augmentation surgery at an outpatient surgery clinic.  Momentum increased for the bill after five patients died from having Lap-Band weight loss surgeries at outpatient surgery centers affiliated with the 1-800-GET-THIN marketing company.

This bill was enacted to protect the public's health and safety.  Previous legislation allowed loop holes for surgical centers that ran into violations by allowing them to shop for multiple accreditation firms that issued approvals.  Therefore, if a surgical center lost their accreditation from one agency, due to safety violations, they could apply to another agency for approval.  This bill will help ensure outpatient surgery centers meet safety standards including cleanliness and proper use of medication.   The law requires that the state medical board must notify the public through its website if a surgery center's license has been suspended or if the surgery center has been placed on probation or reprimanded.  

One of the supporters of the bill, Betty Brown, is the sister of a victim of Lap-Band surgery, Tamara Walter, who died after having Lap-Band surgery at an outpatient clinic in Beverly Hills.  The coroner's report placed the blame with the anesthesiologist, who was on probation at the time.  Brown testified to state lawmakers before they approved the bill.  Brown believes this new legislation would have prevented her sister's accident.  "With more regulation, there would be less a chance something like this happening.  This shouldn't continue to happen."  The Walter family and Betty Brown have filed a wrongful death lawsuit.

Senator Price stated, "It brings oversight that's long overdue over these clinics...It's going to protect the public's health and safety."

For more information about this law, read the article in the Los Angeles Times, "Tighter scrutiny for outpatient surgery centers" October 10, 2011, by Stuart Pfeifer.  Or visit the online version.

Governor Jerry Brown signed a law requiring private accrediting firms to inspect outpatient centers at least once every three years, including surprise inspections.  The bill also requires these accrediting firms to demand improvements or revoke certification if a surgery center does not meet the proper safety standards.

The outpatient surgery centers include medical facilities that perform Lap-Band and liposuction procedures.  The author of the bill, state senator Curren Price Jr. (D-Los Angeles) became interested in this bill after singer Kanye West's mother died from liposuction and breast augmentation surgery at an outpatient surgery clinic.  Momentum increased for the bill after five patients died from having Lap-Band weight loss surgeries at outpatient surgery centers affiliated with the 1-800-GET-THIN marketing company.

This bill was enacted to protect the public's health and safety.  Previous legislation allowed loop holes for surgical centers that ran into violations by allowing them to shop for multiple accreditation firms that issued approvals.  Therefore, if a surgical center lost their accreditation from one agency, due to safety violations, they could apply to another agency for approval.  This bill will help ensure outpatient surgery centers meet safety standards including cleanliness and proper use of medication.   The law requires that the state medical board must notify the public through its website if a surgery center's license has been suspended or if the surgery center has been placed on probation or reprimanded.  

One of the supporters of the bill, Betty Brown, is the sister of a victim of Lap-Band surgery, Tamara Walter, who died after having Lap-Band surgery at an outpatient clinic in Beverly Hills.  The coroner's report placed the blame with the anesthesiologist, who was on probation at the time.  Brown testified to state lawmakers before they approved the bill.  Brown believes this new legislation would have prevented her sister's accident.  "With more regulation, there would be less a chance something like this happening.  This shouldn't continue to happen."  The Walter family and Betty Brown have filed a wrongful death lawsuit.

Senator Price stated, "It brings oversight that's long overdue over these clinics...It's going to protect the public's health and safety."

For more information about this law, read the article in the Los Angeles Times, "Tighter scrutiny for outpatient surgery centers" October 10, 2011, by Stuart Pfeifer.  Or visit the online version.

In 1975, doctors in California helped push through legislation limiting the amount of damages victims of medical malpractice could obtain from lawsuits.  This resulted in the Medical Injury Compensation Reform Act (MICRA).  MICRA caps the amount of recovery a victim of medical malpractice can obtain for non-economic damages, such as pain and suffering and emotional distress at $250,000.  However, economic damages remain unlimited.  Economic damages include such items as medical care and lost wages, including a life time of lost wages and medical care necessary for some victims, such as a child who becomes paralyzed for life due to medical negligence resulting in a birth injury. 

Unfortunately MICRA has not changed or even increased since 1975 because of the difficulties of convincing the legislature to do so.  This includes a very powerful lobby against any kind of increases from the California Medical Association and California Hospital Association.  So the limitation on non-economic damages in California has basically resulted in decreased value of pain and suffering and emotional distress since 1975, however the cost of increased medical care has increased so much and so dramatically since 1975 that the economic damages which have not been limited in California still result in very sizable damages for victims of medical malpractice, especially when we are talking about the cost of future medical care.  

A birth injury victim with severe cerebral palsy will likely require 24 hours a day, 7 days a week medical care for his or her entire life time.  This may require a full time care giver to handle everyday activities from feeding to bathing to dressing.  Also this victim will likely require expensive medical care and treatment for the rest of his or her life.  The amount of care and resources for a victim like this may be well into the millions of dollars over his or her lifetime.  In addition to medical care, there is the amount of lost wages a victim of medical malpractice loses for a lifetime of being out of work.  This is why a victim of medical malpractice in California may receive a multi-million dollar verdict or settlement, when the cap on medical malpractice awards for non-economic damages is $250,000 maximum recovery.

Under our federal constitution, each of the 50 states have their own laws which pertains to various subjects that are particular to that state.  These laws include all types of personal injury claims of which medical malpractice is one subset.  The purpose of the statute of limitations as enacted by the various state legislatures is to try to have claims that are brought before the court in a timely matter, because people's memories pass and evidence can get lost, so it was initially designed to speed up the process.

However, because every state has a different statute of limitations for different types of cases, occasionally, people will have exceeded the time frame to file, because they realized too late that they may have a case.  In situations like this, it is important to be aware of the exceptions to the statute of limitations, which can be used in some states for special circumstances.  If a medical malpractice victim meets the requirements of these exceptions, they may be able to get around the statute of limitations in order to file a claim.  

Many states also have special administrator rules for county hospitals or other types of administrative agencies, which actually lowers the time available for victims of medical malpractice to file a claim.  This may require the medical malpractice victim to file the case within six months, even though the actual statute of limitations may be a year, two years, or longer in that state.  These rules are very specific.  All trial attorneys have to be aware of the statute of limitations that apply to a particular state, as the statute of limitations sets a maximum time after an event that legal proceedings based on that event may take place.

When it comes to the statute of limitations for a medical malpractice lawsuit, the law requires the injured party to file a lawsuit within a specific time period.  Failure to file a lawsuit or take the required legal action, such as filing a malpractice or negligence claim, with the proper government agency, could eliminate the injured parties' legal right to recover damages.  

An example of statute of limitations, would be the state of California, whereby the injured party must start legal action within one year from the date the patient discovers or reasonably should have discovered the injury.  There are certain circumstances where the deadline for filing may be extended.  Visit statute of limitations for more information.

A 1950s Supreme Court ruling that essentially protects the U.S. military from medical malpractice claims is being challenged by military families and veterans.

The ruling, known as the Feres Doctrine, puts injuries acquired as a result of medical error and malpractice on the same level as a battlefield wound.

The outcry against this ruling has resurfaced following the death a noncommissioned officer, whose death was caused after a nurse mistakenly inserted a breathing tube down his esophagus rather than his trachea.

The nurse's error caused the 25-year-old officer's brain to be deprived of oxygen, and three months later his family had to make the difficult decision to remove him from life support.

The young officer was hospitalized for what should have been a 'routine appendectomy' at a military medical facility in California.

The nurse who made the medical mistake admitted to her error and eventually gave up her license to practice in the State of California. The family of the deceased officer attempted to file a medical malpractice claim, but it was quickly denied due to the Feres Doctrine.

The family appealed the decision, but the 61-year-old doctrine must be overturned before any legal action in this case and other military medical malpractice cases can be considered.

Support for change the law has come from veterans groups and military officers, and one U.S. Supreme Court justice has criticized the law, stating that it deserves "the almost universal criticism it has received."

If tort reform limitations on recovery of non-economic damages do not have any direct effect on lowering the cost of liability insurance or the cost of health care, there is evidence that there has been a reduction in the number of medical malpractice claims. However, while society may feel that it is beneficial to reduce the number of medical malpractice claims, society would be better served if the incidence of actual medical negligence were reduced. Meanwhile the effect of tort reform on individual victims of medical negligence has been devastating. From the perspective of the law, such tort reform has prevented many deserving individuals from receiving any measure of justice.

Since the limitation on recovery of non-economic damages that was passed by the California legislature, and signed into law by then Governor Jerry Brown, in 1975, had no increase for inflation, the real effect of MICRA has been the reduced value of non-economic damages for each year that passes. In 1975 dollars, the current value of the CC Sec. 3333.2 limitation is less than $75,000. When the law was enacted in 1975, the cost of retaining medical experts, deposition reporters, copy costs, and even filing fees was commensurate with 1975 costs. In the last 30 years, the costs of medical experts, deposition reports, copy costs, and other litigation costs has increased significantly. 

As a result, many cases can cost more than can be recovered, and economics alone has resulted in such cases simply not being filed. When they are filed, many defense attorneys can and will run up the costs for such cases because they know that even if they lose, their client will have limited liability, and many physician-owed liability insurance carriers would rather spend more to defend a case that to settle. As a result, there are many victims of medical negligence, including the heirs of young children or the elderly, who will never be able to pursue their claims because of the economic disincentive to many Plaintiff attorneys. 

In many cases, recovery of $250,000 can never be considered as adequate compensation for the untimely death of a loved one, especially when that death was due to the medical negligence of a doctor and/or nurse. But since many such cases involve complicated facts with multiple physicians and nurses involved in causing the death, the net recovery to a Plaintiff after paying for the multiple medical experts and other costs needed to obtain a settlement, prevent the Plaintiff from ever obtaining anything close to reasonable compensation.

While it is very easy to demonize frivolous medical malpractice claims as being an unwarranted intrusion on both the practice of medicine and the cost of medical care, reality is more complicated. Claims that result in settlement, even with a limit of $250,000 for non-economic damages, usually change the behavior of negligent physicians and force changes in hospital procedures that hopefully reduce negligent care. 

But since studies have shown that less than 10% of patients who suffer harm from negligent care ever file a medical malpractice claim, any improvement in medical practice or hospital procedures will not translate into a drop the overall incidence of negligent care that result in lawsuits. Meanwhile, the incidence of cases that result in defense jury verdicts or are withdrawn prior to trial will continue to provide evidence of frivolous lawsuits.

To suppose that further restricting the rights of Americans to obtain any sense of justice and reasonable compensation, based on the myth that tort reform will reduce health care costs, is a cynical attack on the basic rights that we should have in this country. The fact that there is no evidence that limiting recovery in medical malpractice claims will ever reduce actual health care costs is even more disturbing to our sense of justice in this country.

In his recent State of the Union address President Obama seemed to renew interest in medical malpractice tort reform as a way to reduce the cost of medical care in the U.S. Referring to the need to reduce the costs of health care, which his health care reform plan did not address, President Obama stated that he would listen to ideas for tort reform as a way to rein in "frivolous lawsuits," He reminded the country that this proposal was a Republican suggestion, and implied that action on tort reform could thus be bi-partisan.

The reality of tort reform, which President Obama certainly knows, is that it would have little impact on reducing the cost of health care. The most optimistic estimates on such "tort reform" is that it might reduce health care costs by less than 3%, and that assumes that much of the cost of medical malpractice includes the ordering of otherwise unnecessary and expensive tests, commonly referred to as "defensive medicine." The main focus of this proposed tort reform is the limitation on the recovery of non-economic damages to a maximum of $250,000. This limitation, which has been the subject of legislation introduced in the House in each of the last several Congresses, is based on the model of MICRA (Medical Injury Compensation Reform Act), which was passed in California in 1975.

California Civil Code Sec. 3333.2 is the part of MICRA, that imposes a $250,000 limitation on the recovery of non-economic damages in any action against a health care provider in California. This limitation affects medical malpractice cases against physicians, nurses, hospitals, and any licensed health care provider. While such a limitation has been in effect in California since 1975, it has done little to reduce the increasing costs of health care in California. 

The reality of health care costs is that many physicians will order unnecessary and expensive tests on their patients, not because they are worried about being sued if they did not order such tests, but because such tests are routinely covered by both private health insurance, and more importantly, by both MediCare and MediCal. Physicians know that they are often paid more for their interpretation of tests than for their time spent examining or talking to patients. Also, many of the most expensive tests are either performed by physicians or performed at facilities owned by physicians.

The only cost that has been affected by the limitation on non-economic damages is the cost of professional liability insurance, because insurance underwriters claim that they can more easily calculate their risk when they know that there is a limit on non-economic damages. There is evidence that the cost of such liability insurance in California is lower than in many other states, but there is no evidence of any direct relationship between the cost of insurance and those states that have such tort reform. 

In fact, the law in California that restricts increases for all insurance rates and requires review of rate increases has probably had a greater impact on keeping the costs of professional liability insurance lower for physicians and hospitals in California. Even if physicians and hospitals are able to pay a lower amount for their professional liability insurance, there is no evidence that they ever pass on such lower costs to consumers.

A West Virginia couple is challenging a state law that places caps on medical malpractice awards. A jury verdict awarded the couple $1.5 million in damages in the medical malpractice case, but because of the law the award was reduced to only one-third of the original amount.

The medical malpractice lawsuit was filed after the husband was admitted into a West Virginia hospital. There he was given a combination of medications which appear to have caused him to develop rhabdomyolysis, which is a breakdown of muscle fibers caused by injury to muscle tissue.

After the couple sued, the case went to a trial before jury. The jury ruled in the couple's favor, awarding $1.5 million to the couple for pain and suffering as well as a $129,000 award to cover lost wages and related medical expenses.

With West Virginia's cap on awards in medical malpractice lawsuits, most awards cannot exceed $250,000, and awards in severe cases are capped at $500,000. In this suit, the husband was awarded a total of $1 million for pain and suffering, while his wife was awarded $500,000. Because of that state's cap, the award was reduced to $500,000 to be shared among the couple.

The law capping medical malpractice awards, established in 1986, originally set a cap of $1 million, but it was later reduced. The cap does not consider multiple plaintiffs, which means that no matter how many plaintiffs are named in the case, the group of plaintiffs must split the award, which is $250,000 in most cases or $500,000 in those cases that are considered severe.

The couple in this case, which has been appealed to West Virginia's Supreme Court, argues that the state's cap on medical malpractice awards goes against their right to a trial by jury, which in turn could stop the jury from making the final decision in a case.

Representatives for physicians and the insurance industry support medical malpractice award caps claiming that such caps keep the costs of malpractice insurance low and prevent physicians from moving to another state.

Similar caps in Georgia and Illinois were recently declared unconstitutional, so it will be very interesting to see what the court says about the constitutionality of medical malpractice award caps in West Virginia.

If you, or someone you know, may have been a victim of medical malpractice, contact the Law Offices of Dr. Bruce G. Fagel at (800) 541-9376 or click here to visit our website.

New legislation on its way to the Illinois Senate would give patients access to detailed background on physicians in that state. Through these detailed physician records, patients would be able to learn if their doctor has ever made medical malpractice payments, if they have ever been fired, or criminal history, among other data.

The battle for legislation giving patients more access to information about doctors has gone on for nearly a decade in the state of Illinois, but last week's passing of the "Patient's Right to Know Act" in the Illinois House marked a very significant turn in the battle. The act was passed as a standalone bill in the House and will now go into the Senate.

Supporters of the state's patient's rights legislation identified a Chicago Tribune investigative series as a major influence in the creation and passing of such legislation. The series of investigative reports exposed slowness by state regulators in responding to convicted and dangerous physicians, many of whom were able to practice in the state without being checked.

The only information currently available online to patients is whether a physician has been disciplined by the Illinois Department of Financial and Professional Regulation. The new Patient's Right to Know Act would require documentation of medical malpractice payments and criminal history to be available for viewing by patients online.

After a narrow victory in the House, it is not clear if the legislation will be able to pass in the Illinois Senate. In the past such legislation has failed in passing due in part to its opposition by the Illinois State Medical Society, an organization's whose power - both political and financial - has influenced past defeat of similar legislation.

Many Illinois doctors oppose this legislation citing the cost of maintaining such a database of records would be beyond what the state can afford, although a recent study found that the creation and maintenance of this database would cost less than $41,000.

Similar legislation once passed in Illinois, but as an amendment to an existing law that placed caps on medical malpractice awards. This gave patients access to detailed physician profiles online for a year, and the site received very heavy traffic. But once the Illinois Supreme Court declared such malpractice award caps unconstitutional, the law and all of its amendments were eliminated.

Patient's rights is a very important subject, and it will be interesting to see how this legislation plays out in the Illinois state senate. If you believe that you or a loved one have been a victim of medical malpractice, contact the Law Offices of Dr. Bruce G. Fagel at (800) 541-9376 for a free consultation.