WHY WE MAY NOT BE ABLE TO HANDLE YOUR MEDICAL MALPRACTICE CASE
July 6, 2016
If you've found your way to this page, you have probably been told that we cannot help you with your medical malpractice claim and you want to know why. It is a fair question and one we have had to answer so many times that posting it on our web site makes more sense than repeatedly explaining it to potential clients.
Our decision likely does not reflect whether or not you have a good case. You may very well. Unfortunately, insurance companies were able to get a law passed in 1975 called the Medical Injury Compensation Reform Act (MICRA). This law makes it virtually impossible for us to handle most medical malpractice cases - even those where the medical error is very clear.
Under the MICRA law, there is a $250,000 cap on non-economic damages for patients who are injured or die because of medical negligence. Even if a jury decides that the family of a child who dies because a nurse administers too much medication deserves to be compensated $1.6 million for their loss, the judge will enter a verdict for only $250,000.
In 1975, $250,000 was a lot more money than it is today. Over time, however, the value of the cap has eroded by about two-thirds. During that same time, the costs associated with these types of cases has increased substantially. A case that may have cost $5,000 to take through trial in 1975, can easily cost $50,000 to $100,000 to take to trial today.
These cases do not settle early or easily. Most cases that do settle, do so shortly before trial is to begin and after $35,000 to $50,000 has already been spent - on filing fees, expert witnesses, copy services and court reporters.
The insurance companies that insure doctors know that if a case against a doctor or hospital goes to trial, the most they can lose is $250,000 in most cases. They also know that the patient loses at trial more than 80% of the time.
Why is that? It might sound like lawyers bring a lot of frivolous medical malpractice lawsuits. That isn't true. These lawsuits are too expensive, too risky and too time-consuming for lawyers to file frivolous claims.
There are a variety of reasons doctors usually win: juries respect doctors and don't want to believe that they are sometimes careless and cause injuries to occur; juries are suspicious of people who sue; and, no matter how egregious the negligence, the doctor will always be able to hire an expert who will testify he or she did nothing wrong - whether that is true or not. Faced with two equally qualified experts with opposite opinions, juries often decide that the patient hasn't proven the case and find for the defendant.
The law says a patient can recover all the economic losses caused by the doctor's negligence. So, if you have hundreds of thousands of dollars in out-of-pocket past medical expenses, if you will require future expensive treatment or if you were earning $150,000 a year before you were injured and cannot return to work, your case may have sufficient value to make it economically possible to litigate. But, if you were fully insured for the past medical costs or were retired or working only in the home, you may find it difficult or impossible to find a lawyer to represent you.
If this all seems terribly unfair, you are right. It is. The insurance industry and the medical associations have fought hard to keep the MICRA cap at the 1975 level. They argue this is good for doctors and keeps malpractice premiums from skyrocketing. That has been proven to be not true. What is true is that the insurance companies know that over time, fewer and fewer lawsuits will be filed and their profits will increase.
Unfortunately, the politicians don't often hear from people like you - people for whom the courthouse door is effectively closed because they cannot find lawyers able to represent them. We are trying to change the law and you can help with that effort. Send a letter to your State Assembly person and State Senator. If you aren't sure who is representing you in Sacramento, go to http://220.127.116.11/amapsearch/framepage.asp, where you will also find the address to which your letter should be sent.
Please also send a copy of each letter to Shawnda Westly, who is working on this issue in Sacramento. Her address is 1127 - 11th Street, # 331 Sacramento, CA 95814.
We sympathize with what you are going through, having been injured by a negligent doctor and not being able to find an attorney who is able to take your case and we regret that we cannot do more for you.