California Medical Malpractice Law Blog

A recent article in the New York Times suggests New York lawmakers look at California medical malpractice laws as a “cautionary tale” concerning the real impact medical malpractice limits have on reducing insurance premiums and passing those savings on to physicians and hospitals.

California’s MICRA – passed in 1975 - caps “non-economic” damages in cases of medical mistakes to $250,000. MICRA has served as a model for similar proposals around the country. However, serious concerns have been raised concerning who really benefits from limits – doctors or insurance companies – and who is harmed.
Much evidence suggests that it is the victims of medical negligence who suffer the most as the result of the cap, often unable to find lawyers to represent them. Caps may make costly medical malpractice cases economically unfeasible for many firms to pursue.

Further, although enacting caps may have a limited impact on reducing insurance premiums, the savings are minimal. As stated by Kenneth E. Thorpe, professor and author of study concerning the impact of caps on insurance premiums, “Without question, it’s not a game-changer.”

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A new report issued by Public Citizen reveals that State medical boards did not discipline 55% of negligent doctors.

Based on reviews of hospital disciplinary actions and medical malpractice payments made on behalf of doctors who were an “immediate threat to health or safety, were incompetent or negligent, or provided substandard care,” the study determined that less than one-half faced licensing restrictions.

The study also found that in California, several doctors had up to 12 “clinical privilege” (hospital disciplinary) actions taken against them with no state licensing consequence. This means that even if a doctor has been found negligent, incompetent or guilty of medical malpractice – as many as 12 times – he may not face any state disciplinary action concerning his license to practice medicine.

In fact, one alarming statistic provides that many of the “disciplined doctors” had a history of medical malpractice payments but still were allowed to keep their licenses and practice, in many cases going on to commit medical malpractice, catastrophically injuring another innocent patient.

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Often clear warning signs exist when an individual suffers suicidal tendencies. According to a lawsuit filed by a Connecticut man - Sylvester Traylor - his wife displayed suicidal thoughts after taking anti-depressants prescribed by her physician. He claims that despite nine attempts to contact her physician with his concerns, his calls were ignored. Traylor’s wife subsequently killed herself by backing her car into her garage and letting the engine run. Traylor’s medical malpractice/suicide lawsuit is still pending in a Connecticut Appeals Court, but he has recently gained national attention as an advocate for access to justice for those affected by medical negligence.

When suicidal warning signs exist, a medical provider is responsible to act in any way necessary to prevent a patient from harming him or herself. The failure to prevent suicide may constitute medical malpractice.

Likewise, certain drugs have been linked to suicide in patients. These include such drugs as Paxil and Prozac. When administered or prescribed incorrectly they can lead to suicidal tendencies that may result in a patient taking his or her own life.

Based on the actions involved in Traylor’s case, he filed a medical malpractice case in Connecticut, but has always felt “invisible.” As the result of reforms aimed at reducing so-called “frivolous lawsuits,” Traylor encountered significant difficulties getting his case heard. Now, as that state grapples with changes to their medical malpractice laws, Traylor was asked to speak about the difficulties he has had obtaining justice for his wife’s tragic death. Traylor notes that he is encouraged by legislation making it more difficult for judges to dismiss cases legitimate cases.

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The Los Angeles Times reports that the rate of cerebral palsy, a birth complication, has dropped. Cerebral palsy is a type of brain injury that affects motor function, including muscle tone, motor skills and movement. It is typically caused by brain damage occurring before or during the birth process.

The precise causes of cerebral palsy are unknown, but it has been linked to pre-mature births and in some cases, delivery room errors. Commonly, birth trauma occurs when the flow of blood and oxygen is restricted during the birthing process. The failure of medical personnel to respond promptly – such as by performing an emergency c-section – may result in long-term injuries such as cerebral palsy. In such instances, the responsible medical staff may be guilty of medical malpractice.

Recent studies of infants born in the United States, Canada and the Netherlands have shown both a decrease in the number of infants who develop cerebral palsy as well as the severity. The improvements were attributed to “general improved perinatal care.” As San Francisco medical malpractice lawyers, we are hopeful that this trend continues.

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