California Medical Malpractice Law Blog

President Obama is weighing the suggestions of the insurance industry to mandate that all claims against health care providers go before a "health court". Though no one seems to know with any certainty what a "health court" would look like, most believe that it would be modeled after the workers compensation system. The health courts would apply universal standards of care to each case, which proponents of the system argue will result in a consistent results. Those in favor of the system also contend that it will weed out frivilous lawsuits better than the current system. Those opposing the health courts point out that there are very few frivilous lawsuits against health care providers, that developing universal standards of care would be impractical, and that the jury system is the fairest forum for justice for patients and health care providers. There are fewer claims being filed against health care providers in most jurisdictions, and the jury verdicts have remained nearly the same over the years, which has lead some to question the need for health courts and the abdiction of the right to trial by jury.

San Francisco Superior Court presiding Judge James McBride recently told local attorneys that "We're burning the hull of the ship to keep the boiler running." This comment was in response to a projected $10.7 million budget deficit for the next fiscal year. The court has frozen hiring, cut off travel and it's reserves are low. Many courts across the state, including San Francisco Superior, have implemented mandatory furlough days which typically close each court room for one day per month. The concern among the local bar is that the budget crisis could result in additional furlough days and the closure of civil departments. That would delay or even preclude justice for every aggreived person or business who is seeking to be made whole by the negligent or intentional misconduct of others.

To this day, many front line physicians do not know of the long-standing guidelines setting forth that some patients at risk for stroke who are chronically anticoagulated with coumadin should receive lovenox as a bridging therapy to prevent a recurrent thromboembolism. As such, many patients suffer devastating strokes as a result. Some of these people, unfortunately end up as plaintiffs in medical malpractice cases. Hopefully the stories of these unfortunate vicitms of malpractice will serve to educate the medical community on the importance of following published guidelines to prevent stroke.

Jeffrey S Mitchell

One of the most critical aspects of a birth injury lawsuit involves the estimation of the brain injured child's future care needs. The life care plan is a tool that's assembled by a physician, nurse and economist along with your attorney that specifically identifies all of the future care needs of the injured child. The life care plan includes an opinion regarding the child's attendant care needs eg: how many hours per day and whether an RN, LVN or medical assisant is necessary; estimations of the physical therapy, speech therapy and occupational therapy needs; estimations of the numbers of physician visits throughout the child's life; adaptive equipment around the home; home modifications; transportation needs and often much more. It's common for the physician and nurse to meet with the injured child's family in their home to assess the extent of the child's needs.

A settlement involving a birth injured child must be approved by a judge. The process is known as a minor's compromise. The purpose of a minor's compromise is to assure the court that the settlement proceeds will not be mismanaged to the detriment of the child. A common method of preserving a minor's assets is to allocate a significant portion of the settlement to the purchase of an annuity (See: July 29, 2008 Blog Entry) and to direct the monthly annuity payments into a special needs trust. A special needs trust holds the proceeds for the exclusive benefit of the injured child. Trustees direct the distributions from the special needs trust to address the needs of the child. A judge may require that a professional trustee be appointed in addition to the parents or close family members. The professional trustee often is affiliated with a bank and will charge an administrative fee. The special needs trust has several benefits, the most notable of which is that under most circumstances it allows the beneficiary to remain eligible for public benefits. The special needs trust plays an important roll in obtaining a judge's approval of a minor's compromise. Your birth injury attorney will work with a special needs trust attorney to create a trust that works for your individual situation.

Annuities play a key role in funding the future care needs of children with birth injuries. An annuity refers to a stream of fixed payments over a specified period of time. Most jurisidictions require that funds paid to resolve a birth injury case be used in large part to purchase an annuity. There are many reasons for that, the most fundamental, is that the court can be assured that the settlement proceeds will not be mismanaged.

Annuities are purchased from large insurance companies. The purchaser gives the insurance company payment of a lump sum of money in exchange for a contractual promise to pay out a stream of money. Annuities are very flexible and can be structured in the best interests of the child. For instance, an annuity can pay a certain amount per month, with annual cost of living increases, for the life of the annuatant or for a guaranteed period of time. The cost of the annuity will vary depending upon the guarantees and annual increases. Typcially your attorney and annuity broker will help you determine what type of annuity is right for your child.

Plaintiff’s, who were represented by Erik Peterson with Bostwick, Peterson & Mitchell in San Francsico, contended that nurses and physicians failed to recognize non-reassuring signs during the labor and delivery process. Plaintiff’s experts were prepared to testify that had the non-reassuring signs been identified in compliance with the standard of care, that an expedited c-section would have prevented the child’s injuries. Plaintiff’s contended that the fetal heart tracing revealed persistent variable decelerations followed by severe and prolonged decelerations and bradycardia thirty seven minutes prior to delivery. The child’s APGAR scores were: 2 at 1 minute and 3 at 5 minutes. The umbilical cord artery reflected readings of ph: 6.71, CO2 131. 02 25 and base excess of -22.7, which is consistent with mixed respiratory and metabolic acidosis. The child was transferred to a tertiary hospital where she responded remarkably well to a cooling protocol for hypoxic-ischemic encephalopathy. Over the ensuing eighteen months the child’s neurologic examinations were near normal and there was scant, if any, diagnostic evidence of a cognitive injury. She was walking at ten months, communicating well at eighteen months and expected to be mainstreamed in the public school system. She was diagnosed with a mild left hemiparesis and gastrointestinal disorder; neither condition requiring attendant care. The non-economic (also known as "pain and suffering") damages in this medical malpractice case were limited by the provisions of MICRA.

The New England Journal of Medicine recently reported that a Harvard study has found that the legal system successfully weeds out claims against health care professionals that have no merit. This comes as a surprise to the American Medical Association, and other medical groups and insurance companies, who have long contended that the laws regarding the liability of health care professionals are too liberal and that tort reform is necessary.

The study was conducted by the Harvard School of Public Health and Brigham and Women’s Hospital in Boston, found that 90% of all claims against health care professionals involved a severe injury; 26% of those resulted in death and 80% in disability. The study reported that 63% of the injuries were due to the negligence of a medical professional and that the overwhelming majority of those claims thought to be without merit did not result in compensation.

This study, which some believe is another nail in the coffin of tort reform, substantiates what plaintiff and defense lawyers have known for a long time; that tort reform is a response to a campaign of misinformation orchestrated by insurance companies that gives preference to insurance company profits over the rights of health care professionals to affordable insurance and the rights of those they inadvertently injure.

California enacted the Medical Compensation Reform Act (MIRCA) in 1975 that, among other things, limited pain and suffering awards against health care providers to $250,000. The damage limitations of MICRA will likely not apply to those who have been injured as a result of Kaiser’s alleged failure to properly administrate their kidney transplant service.

California Civil Code § 3428 states that a health care service plan or managed care entity, such as Kaiser, has a duty of ordinary care to “arrange for the provision of medically necessary health care service to its subscribers and enrollees…” California Civil Code § 3428 (j) states that damages recoverable for a violation of this statute are not limited by MICRA.

Practically speaking, this means that for those who lost family members, or were otherwise seriously injured, as a consequence of Kaiser’s alleged misadministration of their transplant service, their pain and suffering damages will truly reflect their actual losses and not be limited by the draconian measures of MICRA.

In response to patient protests, California HMO regulators announced on Wednesday, May 10, 2006 that they will oversee Kaiser Permanente’s kidney transplant unit in San Francisco in an effort reduce undue delays in facilitating kidney transplants. Presently more than 2,000 Northern California Kaiser patients are waiting for kidney transplants. Kaiser patients have reported considerable delays in obtaining kidneys; delays which are allegedly caused by lost paperwork, poor communication with staff members and problems transferring their seniority from other institutions. At a recent news conference, Cindy Ehnes, the director of the state Department of Managed Health Care referred to a statistic that showed that more than twice as many patients on Kaiser’s transplant waiting list had died than had received new organs.

It is presently unknown if patients have died, or were seriously injured, as a result of these alleged administrative problems at Kaiser. Those who were injured, and possibly their families, may have statutory rights under the laws of the state of California and should consider seeking legal advice.

This case involved neonatal blindness injuries to premature triplets from retinopathy of prematurity. One child was almost completely blind; one child was almost completely blind in one eye and had partial loss of vision in the other eye; and the third child had some functional diminution of vision, primarily in one eye. Retinopathy of prematurity (what used to be called rebrolentna fibroplasia can be treated if timely diagnosed. It is a common problem in premature infants. We contended that the hospital, neonatologist, and pediatricians failed to properly follow up and screen these children and failed to diagnose the condition in a timely manner. The defendants contended that the mother had been properly warned about the condition and failed to obtain an eye exam in a timely fashion after the triplets were discharged from the hospital. This confidential settlement is believed to be the largest of its type in the history of the state of occurrence.

An infant can sustain birth trauma during, before, or directly after birth. Unfortunately, when an infant sustains birth injuries, he or she can develop lifelong physical, developmental, and cognitive complications, including Erb’s palsy, brain damage, and cerebral palsy. Lawyers at our San Francisco law firm may be able to help you if your child has suffered birth trauma due to the negligence or wrongful actions of a medical provider.

Commonly, birth trauma occurs when the flow of blood and oxygen is restricted during the birthing process. When it becomes clear that the mother or infant is not receiving adequate oxygen, it is necessary that the attending physician or medical personnel act quickly to increase oxygen. When the attending physician is negligent and fails to correct the blood and oxygen flow, permanent injuries may result. There are many medical techniques, including cesarean that can prevent long-term damage to the infant. If the physician or attending medical staff fails to act quickly and expertly, the responsible parties may be guilty of medical negligence. In these cases, they can be held liable for the financial and emotional losses suffered by the infant and his or her family. Often, these losses are devastating to the child and family and that is why the attorneys at Bostwick, Peterson & Mitchell are committed to protecting the rights of birth injury victims. Click here for examples of successes in this area.

If your child has been the victim of birth injury or trauma, we may be able to help. Please contact the birth injury attorneys at Bostwick, Peterson & Mitchell today