Medical Malpractice in California
FACTS ABOUT MEDICAL MALPRACTICE IN CALIFORNIA
The State of California has laws designed specifically to protect doctors, hospitals and HMOs (and, in particular, their insurance carriers) from medical malpractice claims. These laws arbitrarily discriminate against victims of malpractice, making it more difficult for them to retain counsel and receive adequate compensation for their injuries or loss. The public at large is generally unaware of these laws and victims of malpractice often are shocked to learn about them when they consult an attorney about a possible malpractice claim. Among these laws are the following:
LIMITATION ON DAMAGES FOR PAIN AND SUFFERING
$250,000 limitation on damages for pain and suffering. The most a victim of malpractice could receive for pain and suffering is $250,000. This limitation applies regardless of the seriousness of the injury caused by the malpractice, and even if the malpractice results in death. Should a jury at trial award an amount for pain and suffering in excess of $250,000, the judge is required by law to reduce the award to $250,000. For example, if a doctor negligently fails to diagnose cancer, amputates the wrong leg, or removes the wrong kidney, thereby causing the death of or seriously and permanently injuring the patient, and a jury awards the patient or the patient's heirs one million dollars for pain and suffering or loss of love and affection, the judge will reduce the award to $250,000. This limitation applies only to victims of malpractice. If the same injury is suffered as a result of a defective product or a car accident no limitation applies. In death cases the limitation applies regardless of how many heirs the decedent leaves behind. For example, if a man dies as a result of malpractice, leaving only a widow, the limitation applies. If the patient leaves a widow and four children, the same $250,000 must be shared by the five heirs.
Binding arbitration (Loss of constitutional right to a jury trial). Kaiser and other HMOs provide in their plans that any malpractice claims brought by their patients shall be submitted to binding arbitration. While most patients are not even aware of the binding arbitration clause in the plan, the California courts have upheld the clause, requiring that the malpractice claim be submitted to binding arbitration. Consequently, Kaiser and other HMOs have succeeded in depriving their members of their constitutional right to sue in court and have their case decided by a jury.
Periodic Payments. In California, any malpractice award for economic damages in excess of $50,000 can be paid by the defendant in periodic payments. This means that the award could be paid over a period of years. Defendants in other types of injury cases are not afforded the luxury of paying such awards periodically.
ATTORNEY FEE LIMITATIONS
Attorney fee limitations. The law limits what an attorney could charge a client for representation in a medical malpractice case. No such limitation applies to auto accident, product liability or other types of personal injury claims. While such limitations may have a superficial appeal, malpractice cases are among the most difficult, complicated and expensive to prosecute. Therefore, the attorney fee limitations contribute to the difficulty malpractice victims have in finding an attorney to represent them.