Medical Malpractice Claims and Patience

In California, for more than 40 years, medical malpractice cases have been subject to the Medical Injury Compensation Reform Act (MICRA), which was the product of heavy lobbying by the health care industry, their lawyers and their insurers.  Not surprisingly, given its source, MICRA places a number of limitations on the recovery by injured patients.  Below, some of the most important rules are addressed and the practical side of malpractice cases is discussed.

The Limit on Recoverable Damages

Perhaps the most important limitation under MICRA is that an injured patient (and even their family) can only recover a maximum of $250,000.00 for what are described as "general" or "noneconomic damages".  Those damages include pain, suffering, emotional distress, loss of relationship, etc.  In no other area of personal injury or wrongful death litigation is there such a limit.  No matter how incredibly unfair, such as when someone is paralyzed or a loved one dies, this decades old rule applies. 

So how is this limit applied to cases in which a jury is called upon to decide the issues of liability and damages?  The answer is somewhat complicated, but the end result is the same.  Even where a jury awards millions of dollars to the parents of a child killed by a negligent doctor, the court must reduce the award down to $250,000.00.  The jury is not informed of the limit, and the verdict is usually reduced by agreement or post-trial motion.  There are no exceptions to this rule where the injury or death is caused by the negligence of a health care provider, although it does not apply where the doctor intentionally or recklessly injures or kills a patient.

In contrast to the limit on noneconomic damages, there is no limit on the amount of economic damages that can be recovered against a health care provider.  Economic damages can include past medical expenses, future medical expenses, past lost earnings, future loss of earnings, etc.  However, unlike almost any other type of case, the defense is entitled to offer evidence of insurance that covered any of the past losses or expenses.  So, the economic damages are usually limited to "out-of-pocket" expenses.

The Practical Effect of Bringing a Malpractice Case

Because of MICRA and jury predipositions in favor of doctors, there are a number of practical considerations every malpractice victim should understand.  Combined, they have the effect of requiring at least one thing from those pursuing a malpractice case:  patience.

Most juries do not want to find a doctor or other health care professional liable for an injury or death.  We all want to believe that with their education, training, and devotion to helping people doctors just don't often make mistakes.  Consequently, much more often than not malpractice jury verdicts are decided in favor of the defendant, and the patient leaves the case with no recovery.  Knowing this, physicians and their insurance carriers are reluctant to settle claims, even very strong claims.

Second, as far as the law is concerned, an injured patient must give the negligent doctor a 90-day warning that a lawsuit is going to be filed.  This requirement was intended to give doctors and their insurance carriers an opportunity to settle meritorious claims without the doctor actually being sued in court.  In practice, such a settlement happens very, very rarely.  The vast majority of malpractice claims result in a lawsuit being filed, and settlements taking months and sometimes even a year or longer.

One of the most important things to remember about pursuing a malpractice case is that patience is absolutely necessary in order to prevail.  Negligent doctors have to be held accountable for breaching the standard of care or soon there won't be a standard at all.  In spite of MICRA and the practical limitations, careless doctors cannot be allowed to practice without fear of being held accountable.

If you believe you or a loved one has been the victim of medical malpractice, a free consultation with an experienced malpractice attorney may be the first step toward obtaining a recovery for the injuries and damages sustained. 


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