Archive for August, 2010

The Real Losers Under MICRA

August 19, 2010

By Sara B. Morgan

California enacted the Medical Injury Compensation Reform Act, known as MICRA, in 1975 to combat concerns over the availability and rising price of medical malpractice insurance. This Act established a limitation, or cap, of $250,000 on the amount a person could recover for any pain, suffering, distress, anguish, and loss of quality of life in a medical malpractice case.

The theory was that MICRA would decrease the number of medical malpractice claims, as well as the costs of resolving those claims. It was further speculated that these savings would “trickle down” to consumers, resulting in lower or stabilized insurance coverage premiums and increased availability of medical services.

No one argues that the publicized goal of medical malpractice caps was to save money, but the real question is, to save money for whom? Under MICRA’s system, the real winners are health care professionals – negligent health care professionals – whose damages are limited to just $250,000 regardless of the type of harm they cause their patients.

MICRA’s impact on Californians injured as a result of negligent health care professionals is widespread. In fact, MICRA caps operate on half of all plaintiffs verdicts in California to reduce the award a jury determines necessary to compensate those plaintiffs for their losses. The end result was a reduction in costs – negligent health care professionals benefitted from a 30% reduction in liability. What is lacking is any evidence showing that patients benefitted from a similar reduction in medical malpractice.

Even more disturbing, research has proven that the jury awards most likely to be capped under MICRA are those cases which resulted in death, in severe non-fatal injuries, and injuries to children younger than 1 year.

This is our justice system’s ultimate betrayal of those Californians most severely injured by negligent health care professionals. It is the responsibility of health care professionals to be accountable for their negligent actions, just as any individual, under our laws, is held accountable. For patients who have died or been severely injured, or who are very young, there is no voice and hence, no justice. Only the California voters can speak on their behalf, by reforming the medical malpractice caps in a manner that protects the voiceless and not the negligent.

What do I do after an accident?

August 16, 2010

by Jeffrey A. Boyd

-Assess your health and the health of anyone else involved in the accident. If any injuries appear to be serious, you should arrange for medical care immediately (dial 911).

-Remain calm and non-confrontational. Getting into an argument with the other driver, eyewitnesses, or medical personnel will not help the situation in any way.

-Get the information from the other driver (driver’s license number, license plate number, insurance company and policy number). Get information from the any eyewitnesses (including name, address, and telephone number).

-Make sure the police are called and that the officer files a report. If an officer will not respond to the scene, visit a police station within 48 hours to file an accident report.

-Make sure you receive necessary medical treatment. Just because you were not taken from the scene in an ambulance does not mean you are not injured. Sometimes a person will brush off pain as simple soreness from an accident. If you are not checked out by a medical professional, you will not know whether it is something more than normal soreness.

-Never give the other driver’s insurance company a recorded statement (see my previous article for the reasons behind this).

-The insurance company will likely handle the property damage claim separate from your claim for bodily injury. This is acceptable, but the insurance company is not entitled to ask you questions regarding your bodily injuries.

-Do not rush to settle your bodily injury claim until you have been examined by a medical professional and have talked with an attorney.

While handling a property damage claim may be fairly straightforward (ie. my car needs a new bumper), injuries to a person may be complex. A person may need physical therapy, medication, or even surgery. Just as a car may sustain damage to its frame that may not be visible to the body of a vehicle, people can sustain internal damage that is not present to the untrained eye. Settling a claim without being examined is risky and could leave you in the lurch if you need future medical care.

Statutes of Limitations and Why You Shouldn’t “Wait and See”

August 4, 2010

by Jean-Simon Serrano

It’s a story I hear on an almost weekly basis.  “After the surgery, I knew something was wrong but Dr. X told me to ‘wait a year and see what happens.’”  From a legal standpoint, this is terrible advice when dealing with a potential medical malpractice claim in California.

What’s wrong with waiting a year?  The Statute of Limitations.

A statute of limitations is a law which places a time limit on pursuing a legal remedy in relation to wrongful conduct. After the expiration of the statutory period, unless a legal exception applies, the injured person loses the right to file a lawsuit seeking money damages or other relief.

Simply put, barring a particular exception, if you don’t file your lawsuit in time, you will be forever barred from bringing your action.

In California, medical malpractice claims are governed by Code of Civil Procedure Section 340.5.  It states that medical malpractice actions must be commenced within 1 year from the date of the injury, or one year from the date the plaintiff discovers, or reasonably should have discovered the injury, whichever occurs first.  It also states that, absent a specific exception, “In no event shall the time for commencement of legal action exceed three years.”

There are three enumerated exceptions to the general rule.  These are:

1. Proof of fraud

2. Intentional concealment

3. The presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.  

Unless you meet one of these exceptions, or unless you are a minor, you essentially have one year to bring your action.

The periods of limitation for medical malpractice apply to minors six years of age and older. For medical malpractice actions involving minors below the age of six, the action must be filed within three years of the date of the injury or before the minor’s eighth birthday, whichever period is greater.

Lastly, if your claim is against a public entity, you are required to bring a public entity claim within six months.

With all of this in mind, hopefully, is it clear why it would be an extremely unwise decision to “wait a year and see what happens.”  Courts are very strict in enforcing statutes of limitations.  Even the most meritorious case could be summarily dismissed if not brought within the appropriate time period.

If you or a loved one has been injured due to medical malpractice, or suspects that they may have been the victim of malpractice DO NOT DELAY!  You should contact a medical malpractice attorney immediately to have your case evaluated.  Furthermore, because the evaluation of medical malpractice cases can take some time, you may find it increasingly difficult to find an attorney willing to take your case as the limitations period approaches.