CBS News reports that a study released today by The Leapfrog Group grades 2,618 hospitals in 49 states on safety.  Massachusetts and Maine top the list with the highest percentages of “A” grade hospitals (83 and 80 percent).  New Mexico reportedly places last with only 7 percent “A” hospitals.

The study recognizes an imminent need for focus on hospital safety.  A statement released by The Leapfrog Group notes that “[a]t least 180,000 people are killed every year from errors, accidents, injuries, and infections in American hospitals.”

The study is not without its surprises and controversy.  CBS reports that the renowned Ronald Regan UCLA Medical Center is one of only 25 hospitals that received an F grade.  CBS reports that the hospital disputes the grade and the fairness of the scoring system, and claims one patient death in 2010 pushed its grade down from a C to an F.  The Leapfrog Group’s president and CEO, Leah Binder, is reported to stand behind the scoring system and UCLA’s grade.

If you’re curious how your hospital scored, there’s an app for that:  The study’s data can be accessed on your mobile device or over the web at www.hospitalsafetyscore.org.  A link to download the app (free) is available on the website.

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On August 23, 2012, the California Supreme Court overturned an 80-year-old rule that worked to keep victims from recovering full compensation for their injuries.  The so-called “release rule” released defendants in multi-defendant lawsuits from having to pay jury verdicts, if a court ruled a prior settlement with any one defendant was not made in “good faith,” i.e., was too low.

Aidan’s Injury

Leung v. Verdugo Hills Hospital concerned a newborn, Aidan, who developed Kernicterus — a form of brain damage caused by excessive jaundice — while under the care of Verdugo Hills Hospital and his pediatrician.  The hospital downplayed known risks about the condition, providing outdated materials and advice to the parents.  The doctor allegedly ignored risk factors and warning signs of the disease.  As a result, a treatable disease progression resulted in profound, lifelong disability.

Because of the condition, Aidan, now 9 years old, has normal intelligence but no muscle control.  According to the child’s attorney, quoted in the San Diego Daily Transcript (SDDT):  “He can’t walk, he can’t talk, he can’t pick up a pencil, throw a ball.”   “It was 100 percent preventable.”

Unjust Result

Aidan’s suit was settled with the pediatrician for $1 million, the limits of his malpractice insurance policy, prior to trial.  A settlement demand of $2.1 million to the hospital was rejected.  At trial, a jury found the hospital 40% liable for Aidan’s injuries, and total economic damages of approximately $15 million (medical costs, not pain and suffering).  But the court found that the settlement with the pediatrician was too low — in “bad faith” — given the pediatrician’s likely large proportionate liability for Aidan’s damages.

Under the release rule, the hospital would have been released from paying any share at all of Aidan’s economic damages because of the court’s finding.  The rule provided that if a prior settlement with any defendant was held in “bad faith” — not in line with the defendant’s predicted proportionate liability – the other defendants were released entirely from paying any damages shared with that defendant.  This essentially erased the jury’s verdict and left the injured plaintiff with no compensation for his medical costs, save for the previous settlement amount.

“Release Rule” Overturned

Overturning eight decades of common law precedent, the state Supreme Court rejected the release rule in Leung.  The court refused to release the hospital from paying any portion of Aidan’s $15 million in medical costs simply because the doctor had agreed to a favorable settlement before trial.  The court also rejected the hospital’s alternative proposal that it should only be held responsible for a proportionate share of Aidan’s damages — 40% of the $15 million.  Instead, the court restored the pro-consumer and pro-victim intent of California’s tradition of joint and several liability.

Because the hospital rejected the pre-trial settlement demand of $2.1 million, it became responsible for paying the full damage amount of $15 million, minus the $1 million paid by the doctor.  If the hospital wishes to pursue the doctor for reimbursement of his share of the damages, it may now do so in a separate lawsuit.  But that burden is not saddled upon the injured plaintiff.

“It’s a very important decision in terms of abolishing an outdated and … unjust rule,” commented Loyola Law School professor John T. Nockleby, as reported by SDDT.  This decision should encourage settlements and get money for medical care in the hands of the injured more quickly.  It takes the power out of an archaic procedural rule and puts it back in the hands of juries.  Leung is a long-awaited victory for California patients and consumers.

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

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Whenever someone has been injured by a product or by a service provider who has drawn them in via advertising of any kind, but particularly web advertising, further investigation is warranted.   There is a significant increase in paid, faked reviews on-line on various product and service review sites -known as “Astroturfing“, a take-off on grassroots campaigns, or fake grass.  These phony endorsements can expose companies to legal liability and monetary sanctions.

In July 2009, a plastic surgery company, Lifestyle Lift, reached a settlement with the New York Attorney General’s office with regard to reviews which were purporting to be submitted by very happy clients.  As it turned out, these were not actually customers, but employees of the company itself.  The Attorney General’s office released part of an internal email in which Lifestyle Lift gave the following directive to its employees:  “Friday is going to be a slow day – I need you to devote the day to doing more postings on the web as a satisfied client.”  Lifestyle Lift ended up agreeing to pay $300,000 in penalties and costs.  And, now it must live with the negative image it has created for itself in any Google search.

The Federal Trade Commission has also pursued charges for deceptive advertising of a similar nature against the California company, Reverb Communications.  The FTC alleged that Reverb had its own paid employees posting positive reviews as if they were customers for clients’ games in the Apple iTunes store, giving their product 4 to 5 starts and saying things like an “amazing new game.”  Consumers had the impression these reviews were made by ordinary people who had already bought the game.   The FTC did not condition its settlement on Reverb paying monetary sanctions, but this case is a clear warning that deceptive reviews cannot be tolerated.  Reverb had to agree to remove old reviews.

Some services now provide the reviewers rather than these coming from in-house.  It is not always hard to follow the trail of some of these paid reviewers to see that they are reviewing products and services in places ALL OVER THE COUNTRY on the same day, pretending to be delighted consumers, always with 4 and 5 star ratings.  You may see the same individual reviewer claiming to have elective surgical services in San Diego, their dog trimmed in Aspen and their tires rotated in Raleigh, all on the same day.  Look cautiously at all reviews.  Often, the reviewer adds personal details and descriptions that make them sound very real.  By checking the other reviews of the individual endorsers, however, you might find something much more deceptive.  

As consumer attorneys, we hope to fight against these practices.  They are unfair to regular, honest business owners who are out there giving it their all for good REAL ratings and positive Yelps, etc.   When these owners have to compete with paid fake testimonials, how can they possibly have the proper ranking the services are intended to provide?

When we are able to show that a marketer has engaged in this conduct, as well as  for instance showing that statistical claims are not true, we take a further stand for truth in advertising, and build a foundation for potential punitive damages.

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With the advent of convenience store clinics and big-box docs, as written about in this article in the San Diego Union Tribune, there is a need for consumers to be very much on their toes, especially if symptoms do not get better quickly. Patients would be best advised to get second opinions or emergency treatment fast in those situations. All doctors are held to particular standards of care, and often speed does not equal quality. A one-stop shopping approach to health care may help for on-the-go convenience, but is not necessarily the best. This is particularly so if the ailment does not meet a standard profile, or the attention of a specialist is required.

The law in California is that physicians who elect to treat a patient even though the patient should have been referred to a specialist will be held to the standard of care of that specialist.  If the physician meets the higher standard of care, he or she is not negligent. (Simone v. Sabo (1951) 37 Cal.2d 253, 257 [231 P.2d 19].) This is a difficult standard to meet and general practitioners often have trouble meeting it. There should and will be times these convenience docs cannot treat the condition and refer the patient to someone working in the specialty field – cardiology, ophthalmology, dermatology, etc. While this blog is not meant to criticize the credentials of doctors working in these ‘faster, cheaper’ venues, this is just a general caution that health should never be taken lightly and while some illnesses can be addressed by over-the-counter, pharmacist or quick doc advice, if the problems persist or progress, the safest approach would be to get other medical help immediately.

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The Internet is filled with web pages, profiles and rankings singing the praises of individual physicians, but how do you know if any particular doctor is really good, as opposed to a shoddy, substandard physician with a slick publicist or personal friend who posts favorable reviews on their behalf?
One way is to check the court records in the county where the physician practices to determine what kind of lawsuits there have been against the doctor and what the result was from those suits. In San Diego County for example, the court index can be accessed online at:

http://www.sdcourt.ca.gov/portal/page?_pageid=55,1056871&_dad=portal&_schema=portal.

If you find that a specific physician has been sued on numerous occasions, it may well be worth a personal trip to the courthouse to pull the entire files and learn more about the individual before allowing the physician to operate or even treat you or your loved ones.


Unfortunately, not all physicians who have been sued multiple times for malpractice have public records at the courthouse. Shocked? How can this be? Well, because many physicians have arbitration agreements which require their cases to be resolved outside of the courthouse by private arbitrators. Often, these lawsuits are never filed in court.
You may be able to learn more about these physicians by checking with the California Medical Board online at:http://www.medbd.ca.gov/lookup.html The Medical Board’s website should be able to tell you if the physician has been disciplined or even formally accused of wrongdoing by the Medical Board or some limited information about the physician’s past settlements or judgments in other medical malpractice litigation. More bad news though, because the Medical Board is under-funded and under-staffed, so on occasion there is no listing even for physicians with a “colored past”.
If you can’t universally rely on court filings or the state licensing/discipline board to tell you if a physician is really good what do you do? Word of mouth from other family and friends who have used a particular physician’s services is often a good way to find such a professional.
New to a community or don’t know anyone who is familiar with a specialist in a particular field of medicine? Often the best physicians are at the university based community hospitals, such as the University of California, San Diego (“UCSD”). These physicians typically are at the top of their field of expertise and more interested in academia and research than some of the for-profit physicians. By doing a little research on the university medical center’s website, you will likely be even able to find a specific doctor who is trained in and conducts research in specific diseases or injuries of interest to you.
One caveat however is that some recent studies have shown that medical errors spike in the summer when new medical trainees start working at teaching hospitals — a phenomenon known as the ‘July effect.’ The New York Times (7/12/11, D6, Rabin, Subscription Publication) reports that death rates do increase in July, and that many patients stay in the hospital longer than in other months.” The Wall Street Journal (7/11, Hobson) “Health Blog” reported that for the review, published in the Annals of Internal Medicine, investigators looked at data from 39 different studies.The Boston Globe (7/11, Kotz) “Daily Dose” blog reported that “the best-quality studies reviewed found that patients treated in July had a 4 to 12 percent increase in mortality risk compared to those treated in the spring before the staffing change.” Meanwhile, “Some of the studies also indicated an increase in medical errors and complications from procedures, but the data weren’t strong enough to draw firm conclusions.” HealthDay (7/11, Mozes) and Medscape (7/11, Kling).
Remember, even if you do find a good physician, a true second opinion from an independent specialist at a different medical group is always a good idea before embarking on surgery. Sometimes a third opinion is even better!
Stay healthy, eat your veggies and exercise. If you are lucky, only preventative medicine and a yearly check up will be all that is required. If not, a trip to the courthouse before surgery to check on your doctor beats the need for a medical malpractice attorney after an adverse event.

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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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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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