Medical malpractice has been heavily litigated in the past and remains an ever-expanding area of litigation. Medical malpractice occurs when a hospital, doctor, or any other medical practitioner causes injury to a patient out of negligence or an omission to do something that is expected of them.
Medical practitioners have a code of conduct to regulate their relationships with their patients. Any deviation from this code is considered malpractice. Negligence may lead to injuries and sometimes even death. These injuries may incapacitate the patient by causing permanent body disfigurement, chronic pain, and loss of income for survivors of the deceased in the unfortunate case of death.
Medical Malpractice Cap in California
The state of California has a medical malpractice cap. This limits the quantity of damages, compensation or money one can get in a medical malpractice case.
The medical malpractice cap has faced legal challenges in the past, but it has ultimately been upheld by the courts. However, after nearly 50 years of the cap doing more damage than good to the residents of California, the stakeholders have deemed it fit to provide medical malpractice updates and revise the cap to reflect the current economic status.
Why Was the Medical Malpractice Cap Set?
The cap was set not only to protect the standards of health attainable but also to protect medical practitioners and institutions from meritless lawsuits that cripple medical practitioners and their institutions at large.
Legal and Ethical Issues That May Lead to a Medical Malpractice Case
- Operating on the wrong body part:Â A medical malpractice claim may arise when a doctor fails to take reasonable care and operates on a different body part other than the designated one.
- Operating in unhygienic conditions: The best practice involves the operation of a patient in a clean environment to prevent the contraction of other infections. When a medical practitioner fails to do this, it is medical malpractice.
- Leaving items in the body of the patient: A medical practitioner may leave items such as a sponge, scalpel or any other surgical instrument in a patient during surgery. These items are foreign to the body and will cause the patient harm.
- Improper treatment: A medical practitioner may adequately diagnose a patient but still give the wrong medication for treatment. This amounts to medical malpractice.
- Total failure to diagnose the patient: This happens when the medical practitioner completely ignores diagnosing a patient with a condition that any reasonable practitioner would not have missed.
Reasons for Revision of the Medical Malpractice Cap
It is argued that the medical malpractice cap does not reflect the current inflation rates in the country, especially after the COVID-19 pandemic. Inflation lowers the value of the actual compensation. The cap was set more than 45 years ago. This is not equitable, as the dollar’s purchasing power has dropped sixfold since 1975.
Studies conducted by Dr. Jack Needleman suggest that raising the cap will deter the ever-increasing number of medical malpractice cases. The number of deaths associated with medical malpractice is at an all-time high of 250.000 annually.
California Medical Malpractice Updates on Caps
Liability insurance has been on a steady rise nationally. California law on the malpractice cap has not seen an amendment for almost half a century.
The original cap stood at $250,000, which has significantly lost value since 1975. This has triggered the Fairness for Injured Patients Act (FIPA).
Fairness for Injured Patients Act
The Fairness for Injured Patients Act was the initial act that declared the medical malpractice cap for noneconomic losses at $250,000. The act was passed to take away the right of juries to determine the amount of damages liable to survivors of medical malpractice. FIPA was also enacted to limit the politicization of medical malpractice cases.
Major Medical Malpractice Cases in California
Kira Johnson, an accomplished woman at the peak of her life in 2016, was scheduled for a routine C-section in a hospital in Los Angeles. She was healthy and did not have any major health conditions. After the procedure, she started experiencing pains in her lower abdomen. The symptoms became severe by the hour, and the family scheduled her for emergency surgery when the situation became dire. It was discovered that the doctors had lacerated her abdomen during the C-section, and she was suffering from acute internal bleeding. Unfortunately, it was too late, and Kira died in surgery. Similar cases are rarely pursued as the $250,000 is barely enough to cover attorney costs. It was thus necessary to increase the amount.
In yet another case, Mr. Scott Olsen was blessed with a child, Steven. The young one was full of life; like other children, he was playful, imaginative and active. Steven had an accident and fell like most children, and unfortunately, he fell on a stick that pierced his upper lip and gum.
After the mother had administered first aid and calmed him down, he was taken to the ER to get stitches. Steven, however, would not recover from the injury as he quickly became tired and lethargic.
Steven was taken to the hospital, and instead of the doctors performing a CT scan to assess his condition, they inspected his spine for bacterial meningitis. When the doctors realized that he had an abscess pushing against his brain, forcing it down the spine, the spot was overgrown, resulting in Steven falling unconscious for two weeks. Even though he did survive, he developed severe brain damage, cerebral palsy, impaired development and permanent blindness.
The $250,0000 set in 1975 was an insult to the level of care and quality of life that Mr. Olsen and his son Steven had lost. The actual compensation awarded by the jury was $4 million for medical expenses and $7 million for the quality of life lost. This was, however, not enforceable with the existing standards at $250,000.
Steven’s mother had to quit her job to support Steven, and even years later, in 2015, when she passed away due to the years of emotional trauma that had taken its toll on her heart, Mr. Olsen also had to quit his job to support his son.
These are classic cases speaking to how the medical malpractice cap is insufficient to cover the losses that patients and their families undergo. They also illustrate that the cap placed has lost value. It may have been sufficient then, but with progression in time and inflation, it is less now.
Substantive Changes Under the Medical Injury Compensation Reform Act (MICRA)
In 2022, the $250,000 ceiling had been in place for 47 years, with Californians denied the right to jury cases for medical malpractice. In November 2022, Governor Newsom signed legislation to update the cap. Consumer groups, trial lawyers, medical practitioners and healthcare insurers supported the amendment to modernize these medical malpractice updates.
The 2023 malpractice cap updates include the following:
- Increasing the cap for wrongful death from the initial $750,000 to $500,000 as of 1st January 2023.
- Perpetual increase of the cap for the next ten (10) years until it hits a one million dollar maximum in 2033 for death cases.
- Yearly increments to a ceiling of $750,000 in 2033 for injury cases.
- The bill also protects medical practitioners who provide statements about medical malpractice prior to the litigation.
Cap on Attorney Contingency Fees
Contingent pay means that the amount of pay is dependent on the monetary award by the court. This may be a result of a negotiated settlement or an award
MICRA goes a step further to place a limit on attorney fees. The quantity of attorney fees is limited depending on the amount of settlement. MICRA sets a basic minimum, and then the fees gradually reduce as the settlement increases. The particulars are:
- Attorneys are prohibited from charging more than 40% of the first $50,000 of the settlement.
- They are prohibited from charging more than one-third of the next $50,000,
- They are not to charge more than 25% of the next $500,000, and,
- Not more than 15% of any amount over $600,000
The bill, however, provides that an attorney may file a motion for a larger contingency fee. An increase would, however, be based on the discretion of the court on whether the attorney has adequately made their case based on evidence.
Doctor Self-Incrimination
The bill introduces a new chapter to part 2 of division 103 of the health and safety code. The new chapter prevents the doctor from self-incrimination in any conduct prior to the lawsuit. If the doctor expresses sympathy or regret or any other act that may be interpreted to imply acceptance of fault for the suffering of the patient shall not be used against them in a court or in any disciplinary hearings.
The introduction is intended to promote better relationships between medical practitioners and their patients.
Who Will Benefit From the Medical Malpractice Updates?
Under the new law AB 35, the new benefits will apply only to cases filed on and after 1st January 2023. This may be disadvantageous to cases before the effective date, but it will help other families and patients who have been victims of medical malpractice.
Calculation of Medical Malpractice Settlements
The value of medical malpractice cases varies depending on the particulars of each case; however, the basic procedure is:
- Your attorney will identify damages, e.g., the loss of wages
- The attorney will then calculate the value of, say, future lost wages
In considering the case’s value, an experienced attorney will evaluate the value of abstract damages, e.g. chronic pain.
The Intent of the Amendments
At face value, the intent is to increase compensation for medical malpractice plaintiffs. This, however, is:
- To deter health practitioners from negligence that may amount to medical malpractice and, thus, better healthcare for patients
- Increase the amount of compensation available to victims of medical malpractice so that they may have a fair shot at restoring their lives to the kind of comfort and lifestyle they were used to before they suffered the injury or loss, and
- Reduce the exploitation of victims from their rightful money by their attorneys
While the bill has increased the cap limits, it still has barred juries from making critical economic decisions on matters relating to health. Some may even argue that insurance companies are the biggest beneficiaries of the amendments.
California Medical Malpractice Attorneys
Medical malpractice is a serious issue that can have significant consequences for both patients and medical practitioners. The medical malpractice cap in California has been revised in recent years to reflect the current economic climate. We expect these medical malpractice updates to impact the number and outcomes of medical malpractice cases for years to come. So, patients and medical practitioners must be aware of the legal and ethical issues that can give rise to medical malpractice claims to prevent these types of incidents from occurring.
A medical malpractice hearing can be long, tedious and downright frustrating. If you or someone you know has been the victim of medical malpractice, it may be helpful to consult with a medical malpractice lawyer to know your legal options.
FAQs
What is the lowest and highest compensation a person may receive from a medical malpractice case in California?
There is no set minimum for compensation; it is discretionary depending on the actual loss suffered. However, MICRA sets caps on cases of injury and death resulting from medical malpractice. The maximum is $500,000 for wrongful death and $750,000 for wrongful injury.
Can a medical practitioner be reinstated after successful compensation?
California state board reinstated ten medical practitioners in 2013 who had lost their licenses to sexual misconduct. This means that the state may restore medical licenses after careful consideration by the medical board.
Can one appeal a compensation award?
Yes, you can appeal—the right to a fair trial and an appeal are constitutional rights.
Jeffrey Nadrich
Jeffrey Nadrich is a nationally-recognized California plaintiff’s personal injury attorney. He is a graduate of UC Berkeley and UC Hastings College of the Law. He has successfully represented thousands of injury clients over the last 40 years.
