We live in an amazing time for medical technology. Every day there are advancements being made that help cure and treat disease. Surgeons perform cosmetic procedures that were unimaginable 30 years ago, especially in major cities such as Los Angeles. Despite the advancements in medical science, however, medical errors are the third leading cause of death for Americans, next to heart disease and cancer. Some medical deaths and injuries are merely accidents, or aren’t ultimately attributable to the procedures which allegedly caused the harm. On the other hand, many of them are the result of medical professional negligence, or “medical malpractice”.
In this article, we discuss the basic laws in California that govern medical malpractice claims, and what you should know if you are the victim of negligence by a medical professional.
MICRA is a statute that was passed in California in 1975 in response to the rising costs of medical care for patients and the high premiums that doctors were paying on their malpractice insurance policies. Prior to MICRA, if someone was the victim of medical malpractice in California, there were no limits on the amount that they or their families could recover for their injuries or death. Amongst other things, MICRA placed a $250,ooo limit, or “cap”, on what are called “noneconomic damages” stemming from a medical malpractice injury. Noneconomic damages are those damages that are impossible to put an exact dollar figure on, such as physical pain and suffering and emotional injury. Compare that to “economic damages”, such as medical expenses, loss of income, or loss of future earning capacity. There is no cap on economic damages under MICRA.
MICRA is widely criticized by California plaintiff’s attorneys for several reasons. First, MICRA places a $250,000 limit on the pain and suffering of a victim of medical malpractice. Clearly, some of these injuries are so serious and permanent that $250k hardly seems like fair compensation. This is especially true in cases of wrongful death, specially the death of a child or elderly person. In wrongful death cases, the family of the victim (surviving spouse, child, or next of kin) brings their claim for the injury they have suffered due to the victim’s death at the hands of a medical professional. Although $250,000 can hardly compensate the family for the pain, suffering, and emotional injuries they have suffered, often they are able to recover for the economic damages such as loss of income and future earnings. However, when a family loses a child or an elderly person (beyond retirement age), they cannot make a claim for loss of income or future earnings, because a child or person beyond the age of retirement cannot prove an employment and earnings history or future. The end result of this is that if a family loses their 5 year-old as the result of medical malpractice, the most they will be able to recover $250,000 plus whatever their medical expenses were.
Second, unlike many states with laws similar to MICRA that have placed a cap on noneconomic damages, California did not provide for inflation when MICRA was written. $250,000 in 1975 would be over $1.1 million today in 2016. This hardly makes sense, and seems to be in desperate need of amendment.
Finally, although MICRA was presented as a solution to the rising costs of medical care and high malpractice policy premiums for doctors, MICRA has done virtually nothing to remedy any of this. Yes, the amounts of settlements and verdicts have gone down as a result of the damage cap (at the expense of victims of medical malpractice), but health care remains as costly as ever, and medical malpractice insurance is as expensive as it ever was.
The end result of MICRA is that the recovery for victims has gone down, while the costs of litigation has gone up along with inflation. For these reasons, many plaintiffs’ attorneys are apprehensive about taking these types of cases.
So what should I do if I am the victim of medical malpractice?
1.) Take care of your health!
Our physical, mental, and emotional health is the most precious thing we have. Going through an injury or the death of a loved one can be very difficult. Your first priority should be to take care of yourself and your loved ones, and get the help you need to recover.
2.) Keep records.
Document everything to the best of your ability, especially records that the medical providers will likely not keep, such as attempts at contacting them and their responses to you.
3. Don’t go it alone…
Because cases involving medical malpractice often involve highly-specialized knowledge of law and medicine, the first thing you. should do if you are the victim of medical negligence is contact an experienced attorney. Your attorney will know what MICRA exceptions to look for, and will be able to develop the best strategy for maximizing recovery and minimizing the costs of litigation.
“We’ll Take It From Here.”
For over 35 years, The Law Offices of Vann H. Slatter have been fighting to get victims of medical malpractice and all injuries the compensation they deserve. We know the law, medicine, and strategies involved in order to maximize recovery for victims of medical malpractice. If you or a loved one has been injured or killed at the hands of a medical professional, please call us today for your free consultation at (310) 444-3010 or toll-free at (888) 293-0404.