When asked during Voir Dire (jury selection at trial), most jurors respond that they’ve heard of the infamous McDonald’s hot coffee case. The Plaintiff (person who filed the lawsuit) got a windfall, right? The Plaintiff was not even injured but received millions of dollars, right? This is just another example of a frivolous lawsuit, right? The big American corporation that we know and love did absolutely nothing wrong, right? Well, let’s take a closer look at the McDonald’s hot coffee case and then maybe we can answer those questions…

The 1994 case of Liebeck v. McDonald’s Restaurants, 1995 WL 360309, involved a 79 year old grandmother, Stella Liebeck from Albuquerque, New Mexico. Ms. Liebeck ordered coffee from a local McDonald’s and after receiving the order, her grandson pulled his car forward and stopped so Ms. Liebeck could add cream and sugar to her coffee. Ms. Liebeck placed the coffee cup between her knees and as she removed the lid, the entire contents of the cup spilled into her lap. She suffered third degree burns (the most significant degree of burns) to over 6 percent of her body, including her inner thighs, groins, and abdomen. She had lesser burns to 16% of her body. She was hospitalized for eight days and underwent skin grafting to repair her grossly damaged skin.

Ms. Liebeck attempted to settle her claim for her medical bills of $20,000, but McDonald’s refused and offered her a measly $800. A lawsuit was filed and during the discovery phase of litigation, McDonald’s produced documents showing that there were more than 700 claims by people burned by coffee over a ten year span. McDonald’s also revealed that its coffee was held between 180 and 190 degrees, while most coffee is sold at a substantially lower temperature. Matter of fact, coffee served at home is generally 135 to 140 degrees. McDonald’s knew their coffee was exceptionally hot and had burned many customers over the past 10 years, but claimed that the millions of cups of coffee sold per day was worth the risk.

The court ordered two settlement conferences, but McDonald’s failed to show, wanting instead to go trial because a jury in New Mexico had never returned a products liability verdict in favor of a Plaintiff. At trial, a jury awarded $200,000 in compensatory damages to Ms. Liebeck. This amount was reduced to $160,000 because the jury found Ms. Liebeck 20 percent at fault. Here’s the kicker though and why this case is so well known, the jury awarded $2.7 million in punitive damages to punish McDonald’s. This amount equaled two days of McDonalds’ coffee sales. The judge reduced the punitive damages award to $480,000 for a total verdict of $640,000. The parties eventually settled the case for a confidential amount, reportedly less than $600,000.

There is a lot of hype about the McDonald’s hot coffee case. The McDonald’s case should be well-known in our society as an example of our justice’s system of checks and balances. It is NOT an example of a runaway jury or windfall to the Plaintiff. And it is definitely NOT a frivolous lawsuit either, given the severity of Ms. Liebeck’s burns and the arrogance/reckless/willful conduct of McDonald’s.

For more information, or if you or a loved one, have been injured as the result of the negligence of another in California, please contact the experienced lawyers at Mulligan, Banham & Findley. Our telephone number is 619-238-8700.

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In the last ten years, radiology tests such as CT Scans, MRIs and ultrasounds have dramatically changed how patients are diagnosed and treated, often for the better. But, their lifesaving benefits are increasingly overshadowed by what tort reformers constantly refer to as “defensive medicine” – the doctor’s fear of being sued by patients for not ordering a test.

Does defensive medicine exist? Is it the real reason doctors and hospitals order more tests for their patients? The following are a couple other reasons to consider why doctors and hospital order additional tests, besides for the most obvious reason, the benefit of a patient:

Morbidity and Mortality (M&M) Conferences – M&M conferences are held regularly in hospitals and clinics across the country. They are peer review assessment of mistakes made during the care of patients. The objective of an M&M conference is for doctors to learn from complications and errors, to modify behavior and judgment based on previous experiences, and to prevent repetition of errors. Once a doctor has presented at an M&M, he/she will probably never make that same mistake again – but he/she may also start ordering more tests on his/her patients for minor symptoms.

Money – Radiology tests all cost money, lots of money. For instance, MRI’s can cost from $400 to $3,500 depending upon which MRI procedure is performed and the location of the testing facility. Doctors and hospitals have contracts with radiology testing companies and testing centers. While physicians are prohibited from having a financial interest in a referral under the Stark Law (Section 1877 of the Social Security Act (42 U.S.C. 1395nn)), the average MRI machine costs over $1 million dollars. Thus, radiology testing centers have to charge enough per test to cover the expense of the machine. And if no tests are ordered, no one makes any money.

Today’s Doctors – Radiology tests have become a crutch for our doctors. According to a recent Time Magazine Article, doctors are no longer taught how to distinguish patients who need testing from those who do not. A decade ago, a surgeon would spend time interviewing and carefully examining a patient to help decide if he or she needed a CT. Nowadays, many surgeons, especially the younger ones, won’t see a patient until the CT is complete. Radiology testing has become more of a reflex than a higher level, well-thought out decision.

Next time you hear someone say that “defensive medicine is the reason doctors cannot practice medicine,” ask them about these other reasons as well.

For more information, or if you or a loved one, have been injured as the result of medical malpractice in California, please contact the experienced lawyers at Mulligan, Banham & Findley. Our telephone number is 619-238-8700.

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I first heard of Delaney Gonzales in a video, entitled A World Without Lawyers, produced by Consumer Attorneys of California. Her story was compelling, tragic, and worth sharing…

On February 4, 2002, Delaney Lucille Gonzales, 16 months old, went to UCLA Medical Center for a routine surgery to repair a cleft palate. It was supposed to be the first of several surgeries to repair malformations on Delaney’s head and face caused by Treacher Collins syndrome, a rare birth defect.

The initial operation on Delaney was successful, according to medical records, BUT a breathing tube was misplaced and pumped air into Delaney’s stomach rather than her lungs. Because Delaney’s body was deprived of oxygen, her heart stopped. She suffered irreversible brain damage. Delaney Gonzalez passed away less than an hour later.

While no one can put a price on the life of a child, twenty-five years before Delaney was born, in 1975, California lawmakers passed a law known as MICRA that determined Delaney Gonzalez’s life was only worth $250,000. That cap on “non-economic damages” for pain and suffering would override the decision of any jury that may think Delaney’s life is worth more.

When a child dies, the other available damages in a wrongful death lawsuit, known as “economic damages,” are very low because future lost wages are difficult to prove and no medical expenses remain. Medical experts, court costs and legal fees, which can easily run more than $100,000 in a complicated medical malpractice case, are not considered “economic damages” either, so they must be subtracted from the settlement or verdict. Thus, Delaney’s family would only receive $250,000 for “non-economic damages,” minus expenses and legal fees, unless they are able to prove Negligent Infliction of Emotional Distress (NIED) or Fraud which would allow for a greater recovery beyond the MICRA cap on “non-economic damages.”

Voters and lawmakers should reject proposals which set an arbitrary value on the life of every child who is the victim of medical mistakes.

For more information, or if you or a loved one, have been injured as the result of medical malpractice in California, please contact the experienced lawyers at Mulligan, Banham & Findley. Our telephone number is 619-238-8700.

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On January 25, 2011, President Barack Obama raised the issue of medical malpractice reform in his State of the Union address by saying that he is “willing to look at other ideas to bring down costs, including one that Republicans suggested last year — medical malpractice reform to rein in frivolous lawsuits.”

What is a frivolous lawsuit? In legal terms, a “frivolous lawsuit” is one having no legal basis or merit, often filed to harass or extort money from the defendant. Most people use the word “frivolous” to describe someone or something that is unconcerned about or lacking any serious purpose. Proponents of tort reform often argue that “frivolous” medical malpractice lawsuits increase insurance premiums for hospital and physicians, increase health care costs, and do not allow doctors to practice medicine.

This begs the questions – are there really that many “frivolous” medical malpractice lawsuits in the United States? Tort reform supporters often cite a 2006 Harvard School of Public Health Study as evidence that there are too many frivolous med mal lawsuits. Representative Lamar Smith (R-Tex), who is the ranking Republican on the House Judiciary Committee, and Darren McKinney of the American Tort Reform Association, both publicly cited the Harvard study for the proposition that 40 percent of medical malpractice suits filed in the U.S. are “without merit” or “groundless.”

It is clear that those who rely on the 2006 Harvard Study to promote the idea that “frivolous” lawsuits have a severe impact on health care didn’t actually read it. Or, if they did, they chose to ignore that authors’ conclusion that efforts to “curb frivolous litigation, if successful, will have a relatively limited effect on the caseload and costs of litigation (emphasis added).” As William Sage, now the vice provost for health affairs at the University of Texas at Austin School of Law, said when the Harvard study was published, “the major problem out there is medical errors that are not compensated, rather than frivolous claims that are compensated.” The most seriously injured patients are the ones whose monetary compensation is severely limited and do not receive the justice they so desperately deserve.

For more information, or if you or a loved one, have been injured as the result of medical malpractice in California, please contact the experienced lawyers at Mulligan, Banham & Findley. Our telephone number is 619-238-8700.

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On February 18, 2011, according to the Los Angeles Times, the University of Southern California Hospital halted its kidney transplants after a kidney was accidentally transplanted into the wrong patient. Luckily, the patient who received the wrong kidney escaped substantial harm and possibly death because the kidney just so happened to be an acceptable match.

According to the article, USC Hospital performs about two transplants a week, which means there are a little over a 100 kidney transplants in a given year. Dr. Goran Klintmalm, a veteran surgeon at Baylor Regional Transplant Institute in Dallas, was quoted as saying that such a mistake is almost inconceivable. “The safeguards are very substantial,” he said. “I can’t even imagine how this mistake could have happened.”

According to a 2000 study by the American Heart Association, medical errors cost tens of thousands of lives in hospitals across the United States each year – more than deaths from highway accidents, breast cancer, and AIDS combined. Studies have put the numbers of deaths at over 98,000 annually in hospitals.

For more information, or if you or a loved one, have been injured as the result of medical malpractice in California, please contact the experienced lawyers at Mulligan, Banham & Findley. Our telephone number is 619-238-8700.

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In the 1970’s, the State of Virginia capped awards in medical malpractice lawsuits at $750,000. In 2008, the cap was increased to $2 million. On February 24, 2011, according to an article in The Washington Post, the General Assembly in Virginia agreed to raise awards in medical malpractice lawsuits $50,000 each year starting in 2012. The bill calls for an increase from a cap of $2 million starting in 2012 and then $50,000 each year until 2031. The cap applies to “any verdict returned against a health care provider in an action for malpractice.”

How does this compare to the State of California? While California does not have a cap on overall damages in medical malpractice lawsuits, California does have a cap on non-economic damages for things such as pain, suffering, and loss of companionship. The Medical Injury Compensation Recovery Act of 1975, known as MICRA, sets a limit on non-economic damages at no more than $250,000 in California. This cap on non-economic damages has not changed in over 36 years!!!

Using an inflation calculator based on data from U.S. government’s Consumer Price Index (CPI), $250,000 in 1975 is equivalent to a whopping $1,023.341 in the year 2011. That’s an increase of over 300%. Or, another way of putting it, $250,000 in 2011 is equivalent to only $61,074 in 1975.

The non-economic damages cap in California is particularly unfair to young children, the elderly, the disabled, and stay-at-home parents. Basically, anyone who was not working or underemployed at the time of their injury or death. As a result of the substantial costs involved in pursuing a medical malpractice case, the cap on non-economic damages prevents many California citizens who have been harmed by a doctor or hospital, through no fault of their own, from being able to seek justice.

For more information, or if you or a loved one, have been injured as the result of medical malpractice in California, please contact the experienced lawyers at Mulligan, Banham & Findley. Our telephone number is 619-238-8700.

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In the early 1970’s, a medical insurance crisis supposedly gripped the State of California. In 1975, then (and current) Governor Jerry Brown called a special session of the California Legislature and the legislature passed the Medical Injury Compensation Recovery Act, known as MICRA. Since its enactment, California’s MICRA has been touted as a model of tort reform for the entire nation.

MICRA applies to actions (i.e. lawsuits) filed against a “health care provider” based on “professional negligence” or medical malpractice. MICRA’s most controversial element is a $250,000 cap on non-economic damages for pain & suffering, regardless of how egregious the medical negligence or how serious the injury. The $250,000 limitation on non-economic damages is not indexed for inflation. There is also a limitation on attorney contingency fees in medical malpractice cases (40 % of the first $50,000, 33.33 % of the next $50,000, 25 % of the next $500,000, and 15 % of any amount that exceeds $600,000), the statute of limitations for actions against healthcare providers was shortened by MICRA, there is a requirement that there be advance notice of claims against healthcare providers, MICRA allows for binding arbitrations, MICRA abrogates the collateral source rule, and MICRA allows for doctors to pay judgments over time.

In California, there are certain causes of actions where MICRA’s cap on non-economic damages is not applicable. The following is a list of the types of cases, that when established, can allow for greater recovery: Battery (Perry v. Shaw (2001) 88 Cal.App.4th 658), Elder Abuse and Dependent Adult Actions (see CA Welfare & Institutions Code Section 15657), Fraud, Unfair Business Practices (CA Business and Professions Code Section 17200), unlicensed health care providers (including telemedicine care) for residents by out of state health care providers (Lathrop v. Healthcare Partners Medical Group (2004) 114 Cal.App.4th 1412) and a failure to summon medical care for a prisoner (Flores v. Natividad Medical Center (1987) 192 Cal.App.3d 1106).

For more information, or if you or a loved one, have been injured as the result of medical malpractice in California, please contact the experienced lawyers at Mulligan, Banham & Findley. Our telephone number is 619-238-8700.

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