California Medical Malpractice Law Blog

A recent study concluded that babies born at night are more likely to be born with brain disorders such as cerebral palsy and epilepsy. The study reviewed the delivery of two million Californian babies in the span of 14 years. The authors concluded that babies born between 10 p.m. and 4 a.m. were 22 percent more likely to develop cerebral palsy than those born during other times of the day.

Cerebral palsy often develops as the result of a birth trauma that occurs when the flow of blood and oxygen is restricted during the birth process. Once it becomes apparent that the mother or infant is not receiving enough oxygen, medical personnel must act quickly to increase the oxygen flow – often by performing an emergency c-section. In some situations, the failure to respond quickly enough to restore blood and oxygen follow may constitute medical malpractice.

The current cerebral palsy study bolsters earlier findings linking night births and adverse outcomes. While previous studies found medical staff errors to be one of the major factors that influenced the risk of brain dysfunction, the current study avoids citing reasons for the increased nighttime risk.

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Many studies have shown that mediation in medical malpractice cases leads to lower costs of litigation and a reduced rate of medical errors. However, a recent report revealed that despite the benefits, one key ingredient was missing – the doctors themselves.

A study published in the Journal of Health Politics, Policy and Law, reviewing 31 cases of mediation revealed the following:

• Plaintiffs’ attorneys were more likely to agree to mediation;
• Those who participated in the process were generally satisfied – this includes plaintiffs, hospital representatives and insurers; and
• No physicians participated in the process.

The study’s authors note that by failing to participate in the process, physicians miss out on some key opportunities – both in terms of human connections and improving patient safety. As explained by Carol Liebman to the Wall Street Journal Health Blog, the missed opportunities include the chance to “repair the relationship between human beings.” Lack of doctor participation also misses an opportunity to “collect information from patients, families and physicians to fill in the blanks of what actually happened, and if there was an error, to figure out how to prevent it from happening again. When you don’t have the involvement of the person who was involved in making those decisions, you don’t get valuable information.”

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A recent case has ruled Louisiana’s $500,000 cap unconstitutional against nurse practitioners. In Olivier v. Magnolia Clinic, parents sought damages for the treatment of her daughter by a nurse who was practicing with only a high school degree. Despite more than 32 visits to the Magnolia Clinic with complaints of diarrhea, nausea, and vomiting during the child’s first year of life, the nurse failed to consult with a doctor at any time. At age 14 months, the child was diagnosed with a neuroblastoma. Had the diagnosis been made earlier, she had a 90 percent chance of recovery. As a result of the delayed diagnosis, the child’s quality of life has been severely diminished.

At the conclusion of the medical malpractice trial, a jury awarded the family $6.2 million. However, due the provisions of the Louisiana Medical Malpractice Act, the award was reduced to $500,000. The Court of Appeals overturned this determination, finding the award reduction unconstitutional. The court reasoned that the cap violates the equal protection clause by discriminating against those severely and catastrophically injured by nurse practitioners.

While the debate over caps continues in Louisiana, California’s MICRA has been in place for over 35 years and continues to deny many catastrophically injured by doctors, nurses and other health professionals compensation for pain and suffering. However, compensation for is not limited for all damages, thus medical malpractice attorneys may be able to achieve higher awards for victims in certain situations.

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Recent articles in the L.A. Times and California Watch have exposed the growing problem of patients suffering significant harm and distress in surgery centers across the state that have been operating free from regulation for over three years. In 2007, case law determined that a doctor licensed to practice medicine was not required to obtain a second license in order to open a surgery center. As a result of this decision, the State Department of Health no longer conducts inspections of hundreds of “surgery centers.”

Several cases have come to light of serious injuries and death resulting from treatment at such facilities. The LA Times detailed the story of a woman who bled to death following a procedure at an Anaheim Hills surgery center. Previous columns chronicled the story of Willie Brook Jr., a man who died after obtaining weight-loss surgery at a Beverly Hills surgery center. Reports indicated that complications from the surgery were partly to blame. Both of these matters resulted in medical malpractice cases.

Reports indicate that now only 45 surgical centers are state licensed. About 715 unlicensed facilities exist throughout the state performing various types of surgeries.

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