 
Medical malpractice or medical negligence occurs when a doctor or
other healthcare provider breaches his or her duty to a patient to
perform treatment in accordance with the "standard of care". The "standard
of care" in California requires that a healthcare provider exercise
adequately, the skill, knowledge and care ordinarily possessed and
exercised by other members of the profession acting under similar
conditions and circumstances. What can I recover in a California Medical Malpractice case? As in any other personal injury case, the damages which can be recovered in a California medical malpractice case fall into two classifications: "special damages" and "general damages". "Special" damages, or "economic" damages are the losses suffered, in terms of money. Included in this category are the "cost" of medical care, the "cost" of special medical devices, "costs" the plaintiff will incur in on order to continue to function, the loss of future earnings, and other "out of pocket" expenses/losses. "General" damages or "non-economic" damages, are the compensation to the plaintiff for the pain, suffering, disfigurement, embarrassment, loss of enjoyment of life, loss of consortium, and other losses that are not directly associated with a financial "cost". Legislative Limit on "Non-Economic/General" Damages In 1975, the California Legislature limited the plaintiff's ability to recover "non-economic" damages to $250,000. No matter how much pain the plaintiff has/will suffer, no matter how their future life has been altered, no matter the disfigurement, no matter the disability, no matter the loss of the normal functions and joys of life, the limit on "non-economic" damages for a medical malpractice case in California is $250,000. That limit has not changed since 1975. Who benefits from this law? Who is prejudiced by this law? Who do you think was behind getting the California legislature to pass laws that allow healthcare providers to avoid full liability for their errors. Why isn't the healthcare industry held to the same standard of accountability as every other industry in California? Proving Medical Malpractice in California It is expensive to gather and present the evidence necessary to prove a California medical malpractice claim. Plaintiffs need to hire expert witnesses to testify on the issues of: (1) the "standard of care"; (2) the provider's breach of that standard; (3) the causal relationship between the negligence and the injuries caused; (4) the cost of the future care for the injuries caused; and (5) any loss of earnings over the lifetime of the plaintiff. The total cost of hiring experts, conducting discovery and presenting a California medical malpractice case typically runs $50,000 to $100,000. The Economics of a California Medical Malpractice Case When considering the costs of pursuing a medical malpractice case ($50,000 to $100,000+ in costs) plus attorney's fees and the projected outcome of a jury award, it becomes apparent that the only "economically viable" medical malpractice cases are those with very large "economic" damages. What about a Death caused by Medical Malpractice? In cases involving a death, the same basic analysis applies as any other personal injury case, except for the "non-economic" damages and the attorneys' fees. Again, non-economic damages are limited to $250,000 in California medical malpractice actions. In addition to non-economic damages the heirs are entitled to recover the incurred medical and funeral expenses as well as loss of income that they would have otherwise received but for the death. This situation results in most death cases of a relative that was not supporting someone, being not "economically viable", even though a life has been wrongfully taken. Why are Plaintiffs' Law Firms reluctant to take Medical Malpractice Cases? In the vast majority of California medical malpractice cases the profit margin is to low or non-existent. It is much more expensive to pursue medical malpractice claims than it is most every other type of personal injury claim, with the exception of products liability claims against automobile manufacturers and drug manufacturers. The amount of work required by the plaintiffs' law firm in a medical malpractice case is as high as in auto and drug manufacturer cases, however, in California, the attorneys fees have been lowered by the California legislature to substantially less than what plaintiffs' firms earn on auto and drug cases. The Plaintiffs' law firms generally do not want to invest their time and money in cases that are substantially more difficult to prosecute, are substantially more risky and pay substantially less. Also, generally, juries are much more likely to hold an automobile or drug manufacturer accountable for their wrongdoing than they are the local doctor or healthcare provider. |
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