California Medical Malpractice Law Blog

This past week, President Obama raised the issue of medical malpractice reform, commenting in his State of the Union address that he will look at ideas to bring down health care costs including “medical malpractice reform to rein in frivolous lawsuits.” House Republicans also introduced a bill modeled on California’s MICRA, which limits recovery to no more than $250,000.

The L.A. Times reports that many patients’ rights advocates were upset by Obama’s comments, especially the use of the phrase “frivolous lawsuits.” This term downplays the serious and devastating nature of many medical mistakes that leaves the families of some victims – often children and the elderly - without adequate compensation. Under California law, recovery for families of children who have suffered brain damage or other crippling injuries may be limited to $250,000 for a life-time of pain and suffering.

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A recent report is calling for the increased use of surgical checklists to reduce the number of medical errors and incidences of medical malpractice. The use of checklists is often raised as a simple idea that could potentially save thousands of patient’s lives each year.

The report concluded that nearly one-third of medical malpractice claims were the result of mistakes that could have been caught by a checklist. Experts note, “tens of thousands of Americans die every year due to medical errors – most of which are related to surgery.”

A knowledgeable medical malpractice attorney can advise you whether an injury due to a surgical error may constitute medical negligence.

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This week’s California Capitol Weekly published a compelling op-ed written by a physician – David Stewart - weighing in on the MICRA discussion. His editorial was in response to Dec. 16th article, “MICRA: Long-simmering dispute looming in Capitol.”

Stewart’s piece begins “My interest in MICRA, California’s law that limits pain and suffering compensation to $250,000 in medical malpractice cases, is twofold: I am both a physician and the son of a victim of profound medical negligence. I have firsthand experience with the implications and practical effect of MICRA.”

As a San Francisco medical malpractice lawyer I agree with many of the points Stewart raises in this editorial and have witnessed the unfortunate “real impact” of MICRA on the victims of malpractice. He details the agony of seeing a loved one harmed as the result of medical negligence – in this case his mother died after developing a post-operative complication. In his family’s search to find out what happened, they discovered health care professionals had deleted the relevant medical records. After ultimately decided to bring a lawsuit, his family then had difficulty finding an attorney to take the case.

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The L.A. Times reports that the Los Angeles County Board of Supervisors has just approved a $1.175 million settlement in a medical negligence case. The incident occurred at Harbor-UCLA Medical Center after the tip of a catheter punctured a patient’s blood vessel wall.

The patient, Amber Dunn, was treated at the hospital following a car accident in 2008. While doctors were performing a diagnostic procedure, one of her blood vessels was injured, causing additional complications. According to the article, although County officials believe the care provided at the hospital was adequate, they feared losing in court due to the doctrine of “Res Ipsa Loquitor.”

With the literal meaning “the thing speaks for itself,” the doctrine of Res Ipsa Loquitor presumes that a person or entity – such as a hospital – is negligent if it has “exclusive control” over what caused the injury, even where you can’t point to a specific negligent act. In simple terms, if a person submits to a medical procedure for one matter and comes out having suffered harm in an unrelated area – something “went wrong” and the health care provider may be liable for negligence. Without showing a specific instance where care fell below the standard, negligence is presumed.

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