Medical Malpractice

Q: What is medical malpractice?

Medical malpractice, or more appropriately, medical negligence is that type of claim which a victim has available to him or her to pay for a wrong committed by a doctor or other medical professional which has caused bodily harm.

Medical malpractice is much more than the physician or other health care provider making a simple mistake. Malpractice occurs when the health care provider does something that other good doctors would have not done or else fails to do something other good physicians would have done .

Q: Assuming the patient goes to a doctor and gets a bad result, are these easy cases to win?

No, these are among the most difficult cases for a victim or victim’s attorney to win. In California, 9 out of 10 jury verdicts are in favor of the doctor .

In order to bring a malpractice case to trial, it is necessary to have expert testimony describe what was done wrong and how it could have and should have been avoided. Good reliable experts are expensive and difficult to find. Often, doctors in the community won’t testify against one of their own colleagues and out of town doctors have to be brought in to testify.

When the victim does win, the amount that victim can obtain is severely limited by legislation which was passed under heavy lobbying by the insurance industry and medical community.

Q: Do all medical malpractice cases end up in trial?

While a malpractice case may settle before going to trial, the insurance company cannot settle the case without the doctors’ consent. Doctors in most cases are unable to admit that they are capable of making a mistake. Without the doctor’s consent the case cannot settle no matter how much the patient and the doctor’s insurance company may want to settle it.

In addition, there is a whole category of medical malpractice cases that never go to trial, but instead are resolved through binding arbitration. Many hospitals and doctors have the clients sign an agreement to go to binding arbitration if there is any dispute. These agreements are often in fine print in the initial papers the patient fills out when they first see the doctor or when they are initially admitted to the hospital. Often, the patient doesn’t realize that he or she has signed a binding arbitration agreement until there is a problem and the lawyer finds this clause buried in the patient’s medical records. These binding arbitration clauses are usually iron clad .Courts have found them to be enforceable not only against the patient, but also against the patient’s spouse and unborn child !

Q: How are binding arbitrations conducted in medical malpractice cases?

In California, if the patient concedes that there case is worth less than $200,000.00, then the case is decided by a single arbitrator selected jointly by all parties.

If the patient believes their case is worth in excess of $200,000.00, the case is decided by three arbitrators: One selected by the patient, one selected by the health care provider and a neutral arbitrator mutually agreed upon by both sides.

Because arbitrators charge several hundreds of dollars an hour for their time, arbitrations can become very expensive.

Additionally, most arbitration clauses patients sign provide that each side bears their own cost. That means that even if the patient wins their medical malpractice claim, they still have to pay all of the costs for the experts and the arbitrators out of their own pockets. This is different from most trials where the victim’s attorney tries to shift the costs to the defendants if the victim wins the trial.

Q: How much can a victim of malpractice recover?

Regardless of the age of the victim or the severity of the injury, the most any victim of malpractice can get for his or her pain and suffering is $250,000.00 in California. So, even if a baby is born permanently blind and paralyzed because of a doctor or hospital’s mistake, the most that infant can expect to get for its lifetime of pain and suffering is $250,000.00.

Efforts have been made to remove this harsh cap, but as recently as a few months ago the California legislature voted down bills to increase this ceiling.

In addition to this $250,000 limit for pain and suffering, there is no limit on how much the victim can get for future medical expenses or future lost wages.

Q: Are there any other limits on medical malpractice lawsuits?

Yes, perhaps the harshest limit is the statute of limitations. In the United States, California has the shortest time limit in which a victim can assert a medical malpractice claim.

Generally, if a victim doesn’t takes steps to formally preserve his or her claim for malpractice, all rights to bring any lawsuit will be lost one year after the patient discovers the injury , or three years after the date of the injury, whichever occurs first.

There is an exception to this rule for minors, or if the health care provider committed fraud or in the unusual situation where the doctor left a foreign body inside of someone during surgery.

But again, generally there is a very limited window of opportunity for a victim to bring a malpractice claim so if someone thinks they have been permanently injured by a doctor, they should consult a good attorney right away.

Q: How can a consumer tell if they should bring a medical malpractice lawsuit?

Because of the large expense involved in hiring experts and bringing a malpractice case coupled with the difficulty in winning these cases, only the most seriously injured victims’ claims can be pursued .These cases are extremely hard fought and more emotionally taxing for the client than almost any other type of litigation.

Q: What do you do when you to want to prove that someone died because of negligence or abuse?

An autopsy is usually necessary if you truly want to prove in a court of law what caused a person’s death. While it is not impossible to win a lawsuit without an autopsy , in many circumstances, it will be extremely difficult to prove a case without one. Even if you know (or think you know) the cause of death ,an autopsy can provide valuable information to aid in the lawsuit as well as providing answers to family members about the circumstances surrounding someone’s death.

For example, if someone dies of a heart attack (cardiac arrest) an autopsy may be able to show whether there were any prior, silent attacks, approximately when each such attack occurred and whether or not the final cardiac arrest was the type that could have been prevented with good medical care.

Better if the autopsy is done somewhere other than at the hospital where the questionable medical care was rendered. If adequate funds are available, consider having the autopsy performed at a university medical center . Specifically request that the doctors involved in the care and treatment of the patient NOT be allowed to be present during the autopsy and for the medical examiner/ pathologist/toxicologist involved in the autopsy NOT communicate with the treating doctors about their findings.

It generally will l take a couple of months to get the final report regarding the autopsy. In the interim, whomever is listed as next of kin on the death certificate should IMMEDIATELY order ALL records from the hospital or health care facility where the questionable care was rendered. . Bring the photo ID of the heir requesting the records together with a copy of death certificate to the medical records department when requesting records . Write down the name of whomever is taking the order for the records and the date the records will be ready. Please see additional information above about obtaining medical records.

You need to get those records ASAP before the autopsy is completed so the health care providers won’t be able to change the records to conform to whatever is in the autopsy report that may or may not help them.

Q: What will an attorney do to determine if I have a good case?

If the victim suffered a severe , permanent injury, a malpractice attorney will read and summarize all of the person’s medical records to make an initial determination as to whether there is a viable case. Often, the attorney will do medical research to assist in the initial evaluation.

Before bringing a malpractice lawsuit, a competent and ethical attorney will first have the medical chart reviewed by a qualified expert to make sure that there is a case.

It is impossible to ascertain the merits of a medical malpractice lawsuit without extensive investigation, research , evaluation and consultation with medical experts.

Q: How much do medical malpractice attorneys charge to represent a victim?

Attorneys are hired on a contingency fee basis. That means the victim does not have to pay the attorney by the hour for his or her time. Attorneys’ fees in medical malpractice lawsuits are set by statute in California. The fees are forty percent (40%) for the first $50,000 recovered and goes down from there on a graduated scale where at the top end the attorney receives fifteen percent (15%) for any sum in excess of $600,000.00.

But remember that in addition to the attorneys’ fees there are also a lot of expert costs associated with malpractice cases. These are separate and apart from the attorneys’ fees. On a case by case basis attorneys make different arrangements for payment of expert costs.

Q: What can I do to make sure I select a good attorney to handle my medical malpractice case?

Make sure that the attorney devotes a substantial part of their practice to medical negligence claims and that he or she has done so for a number of years.

Ask the lawyer about other medical malpractice cases he or she has handled. If he or she hasn’t handled a case involving your same scenario before, has he or she had one that involves the same specialty? If so, ask them to describe it .

Ask the attorney if he or she has taught medical malpractice to other attorneys or authored any books or articles in the area. If not, what does the attorney do to keep abreast of changes in both law and medicine?

Is the client expected to pay for the initial expert’s evaluation? If so, who much will it cost and when is the money due?

Will the case be handled by the attorney personally or will it be handled by an associate? If handled by an associate, what experience does the associate have and how much direct involvement will the primary attorney retain in the case?

What kind of experts will the attorney retain to review the file? Ask to see the experts’ curriculum vitae (resume) to make sure the expert has a solid background .

This final issue is the most important factor . The investment both the victim and the attorney will make in pursuing the case will involve a tremendous amount of effort, time and resources. Given how difficult medical malpractice cases are to win, the client should make every effort to ensure they have a solid case before proceeding forward.

From society’s point of view the filing of a claim which ultimately cannot be proved hurts the civil justice system and will be used to attack the system by those who try to eliminate the rights of victims.

Lastly remember that this is a claim that is about to be asserted against a professional for failure to properly carry out his or her duty. This step should never be taken lightly.

Q: How do we get my medical records?

No one can determine whether or not you have a good case without reviewing your medical records. Sometimes, it is better for the patient to obtain a copy of ALL medical records rather than having the attorney obtain the records.

There are both benefits and detriments to having the patient obtain the records first rather than the lawyer. The benefits of having the patient pull his or her own records include the following: If it turns out there is no case, the health care provider need never know that the patient had a lawyer review the records. Second, if the records are pulled simply so the patient can obtain a “second opinion” ,the health care provider is less suspicious in handing over the records. This means records are less likely to be changed (yes, on rare occasion health care providers have been known to lose or change select records!) Finally, sometimes the provider will charge a patient less for a copy of the records than they would charge an attorney.

The benefits of having the lawyer pull the records include the fact that it is easier for the patient not to struggle with the medical records department of the hospital or doctor.

Often, if the health care provider knows that an attorney is involved, they will not release the records without first sending a copy of them to their own attorney or risk management department for review. This can add several weeks to the process.

When weighing the pros and cons , it is better for the patient to try to obtain their own records .

The patient should try to obtain ALL RECORDS and as SOON AS POSSIBLE . If the doctor or hospital resists giving the patient their records, it may be helpful for the patient to download and print the following information from the California Medical Board and to hand it to the provider resisting the attempts to produce the medical records. http://www.mbc.ca.gov/Consumers/Access_Records.aspx

If the records are being obtained in a wrongful death case, the next of kin should give the health care provider a copy of the death certificate listing the individual as next of kin and a copy of their identification proving that they are indeed the person identified as next of kin on the death certificate.

Qui Tam Program

Q: REWARD for Reporting Medicare & Medicaid Fraud

The government will pay you up to 25% of the amount it recovers through the successful prosecution of Medicare and Medicaid fraud cases. Each year the government losses millions of dollars due to fraud. The ultimate victims of fraud against the government are the American taxpayers. The government pays this “reward” because much of this abuse can’t be detected without the help of health care workers and others who have inside information about fraudulent activity.

Do you know any hospitals, health care businesses, HMOs, nursing homes, medical clinics, labs, companies or individuals that have been involved in filing fraudulent claims for Medicare or Medicaid?

Your help is needed to help maintain the integrity of our national health care system. You are providing a great service to the government and American taxpayers by reporting abuses. The government will reward you for your assistance. Also, the law protects the jobs of persons who blow the whistle on fraudulent activity.

Q: About the Whistleblower (Qui Tam) Program

Qui tam is a provision of the Federal Civil False Claims Act that allows private citizens (“relators”) to file a lawsuit in the name of the U.S. Government against any entity or individual that receives or uses government funds as a result of fraud. The relator shares in any money recovered by the government. This unique law was enacted by Congress in order to effectively identify and prosecute fraud against the government and recover revenue lost as a result of the fraud.

Q: Who Can File a Qui Tam Action?

Employees and Former Employees: An employee files a qui tam action based on his or her direct knowledge of fraud on the part of their employer. Often it is a former employee that files a claim. Usually, in these instances, the employee was terminated or quit under duress as a result of trying to blow the whistle internally.

Competitors: Another eligible relator is the competitor of the company being charged or an employee of the competitor who has direct knowledge of the fraud being committed.

Subcontractors: Companies or persons who subcontract with a government contractor have filed qui tam actions against a contractor that commits fraud against the government.

Federal Employees: Despite the court challenges, a recent federal appeals court decision upheld the right of a federal employee to be a relator in a qui tam action.

Q: Relator’s Share of the Award

The relator’s share is a minimum of 15 percent and a maximum of 30 percent of the amount recovered by the government.
The size of the relator’s share of the award depends on several factors:

1. If the Government joins the lawsuit and successfully prosecutes the case, the relator can receive between 15 and 25 percent depending on the extent of the relator’s contribution to the case.

2. If the Government does not join and the relator successfully prosecutes the case, the relator will receive between 25 and 30 percent of the proceeds.

3. If it is determined that the relator was involved in the wrongdoing, the court can reduce the relator’s share at its discretion depending on the circumstances of the relator’s involvement.
How large can settlements get?
Excerpts from a January 19, 2000 press release:

“WASHINGTON – Millions of Medicare beneficiaries and American taxpayers can give thanks once again to private citizens who come forward with evidence of wrongdoing against the federal government, according to Iowa Senator Chuck Grassley.

The Justice Department unveiled its largest health care settlement in history against a national chain of kidney dialysis centers. First tipped off by private citizens who blew the whistle on allegations of fraudulent Medicare claims, the federal government launched an investigation which resulted in a $486 million settlement including criminal, civil, restitution and other penalties against a German-owned medical company for bilking government health programs.

According to the Justice Department, the agreement with Massachusetts-based National Medical Care, Inc., a kidney dialysis subsidiary of Fresenius Medical Care North America, includes allegations that company officials charged Medicare for hundreds of thousands of needless medical tests and lab procedures for patients suffering from chronic kidney disease and paid illegal kick-backs to obtain referrals of lab business.

The record-breaking $385 million civil settlement resolves six lawsuits brought by seven private citizens under the whistleblower provisions of the False Claims Act.

“The False Claims Act is the government’s most effective tool against fraud,” said Grassley. “Today’s announcement proves the merits of the law beyond any reasonable doubt. I’m sure 39 million Medicare beneficiaries and every American taxpayer would agree with me. We must not let up in our effort to shut-down the bad actors, to safeguard the financial integrity of the Medicare trust fund and to protect the hard-earned dollars that every worker in America sends to Washington.”

Q: How to Bring A Qui Tam Action

To bring a qui tam action the relator must be the first to file a claim. Therefore, if you have information concerning fraud on the government it is important to act promptly. The attorneys at the law firm of Mulligan and Banham will provide a confidential evaluation of your claim at no cost or obligation. To contact an attorney call 619-238-8700.

Nursing Home Abuse and Litigation

Q: What is Elder Abuse?

Recently, in California and nationally, statutory schemes were amended because of the legislatures’ recognition that elderly and dependent adults are more subject to risks of abuse, neglect and abandonment. California’s statute seeks to impose enhanced damages including attorney’s fees and pain and suffering damages which survive the death of the victim where it is proven by clear and convincing evidence that a defendant is liable for physical abuse, neglect, or fiduciary abuse, and that the defendant has been guilty of recklessness or worse.

The abuse can be recurrent neglect or a single egregious event which produces injury, either physical or financial.

Q: What types of injuries are most frequently seen in these cases?

There are several common types of injuries that are seen as a result of progressive abuse. These include decubitis ulcers (or bedsores), severe dehydration and/or malnutrition, septic shock, gangrene and aspiration pneumonia. Evidence of systemic neglect is often revealed through (1) persistent deprivation of basic care for totally dependent residents; (2) injuries and deaths that are linked to progressive neglect; and (3) similar problems involving other residents.

Q: How do regulations affect nursing homes?

The Federal statute, the Omnibus Budget Reconciliation Act or “OBRA”, 42 USCA 1396r et seq. and 1395i-3 et seq., and its interpretive guidelines, spell out how nursing homes are ultimately responsible for the health, medical care and well-being of their residents. A federal bureau known as the Health Care Financing Administration, oversees compliance with these regulations. If substantial compliance is shown, certification of the home is continued and the home can continue to receive government funds such as Medicare/Medicaid. If not, the home may lose its benefits.

California has its own nursing home licensing and inspection scheme, as well as the California Elder Abuse Act (or “EADACPA”), Welfare & Institutions Code §15600, et seq. EADACPA provides new remedies such as the recovery for attorney’s fees in certain cases. Care is expected to improve as nursing homes take steps to prevent injuries and avoid litigation, which is increasing given the new remedies available.

Q: What types of damages are available in these cases?

California’s EADACPA allows for attorneys’ fees and pain and suffering damages which survive the victim’s death. Under a recent case, Delaney v. Baker (1999) 20 Cal. 4th 23, the California Supreme Court found that only causes of action “based upon professional negligence” need be governed by laws that specifically apply to them, including California’s Medical Injury Compensation Reform Act, Civil Code §3333.2 (“MICRA”), which caps non-economic damages at $250,000.

If a case is found to rest more in elder abuse than physician malpractice, there is no cap on general damages. Based on this EADACPA and Delaney, in addition to general, special and punitive damages, plaintiffs shall now receive reasonable attorney’s fees and costs, as well as general damages for the victim’s own pain and suffering despite the fact that the victim may have passed away.

Q: How do you best evaluate a plaintiff’s case in this area?

Counsel must obtain as much information as possible before proceeding with litigation. An initial review of the medical records is critical. Counsel should also interview all available family members, friends and percipient witnesses to determine if there is any additional information regarding the elder’s treatment or documents which will assist in evaluation. This should include inquiries regarding complaints and/or third party investigations by governmental authorities.

Because most victims in nursing home cases are long past the stage of earning wages and often have short life spans, analysis of these cases is different. Important factors include the egregiousness of the nursing home’s conduct, its financial viability, whether a pattern of neglect can be shown, and whether injuries from the nursing home’s negligence can be distinguished from the resident’s existing disease process.

Public records which are available include inspection records from the local office of the State Department of Health Services, including ACLAIMS database profiles, and local and state ombudsman’s records. All of these documents are useful in establishing the strength of potential case.

Q: What do you do when you believe someone died because of medical negligence or nursing home abuse?

An autopsy is usually necessary if you truly want to prove in a court of law what caused a person’s death. While it is not impossible to win a lawsuit without an autopsy , in many circumstances, it will be extremely difficult to prove a case without one. Even if you know (or think you know) the cause of death ,an autopsy can provide valuable information to aid in the lawsuit as well as providing answers to family members about the circumstances surrounding someone’s death.

For example, if someone dies of a heart attack (cardiac arrest) an autopsy may be able to show whether there were any prior, silent attacks, approximately when each such attack occurred and whether or not the final cardiac arrest was the type that could have been prevented with good medical care.

Better if the autopsy is done somewhere other than at the hospital where the questionable medical care was rendered. If adequate funds are available, consider having the autopsy performed at a university medical center . Specifically request that the doctors involved in the care and treatment of the patient NOT be allowed to be present during the autopsy and for the medical examiner/ pathologist/toxicologist involved in the autopsy NOT communicate with the treating doctors about their findings.

It generally will l take a couple of months to get the final report regarding the autopsy. In the interim, whomever is listed as next of kin on the death certificate should IMMEDIATELY order ALL records from the hospital or health care facility where the questionable care was rendered. . Bring the photo ID of the heir requesting the records together with a copy of death certificate to the medical records department when requesting records . Write down the name of whomever is taking the order for the records and the date the records will be ready. Please see additional information above about obtaining medical records.

You need to get those records ASAP before the autopsy is completed so the health care providers won’t be able to change the records to conform to whatever is in the autopsy report that may or may not help them.

Q: Where should your case be filed?

The Elder Abuse Act gives the Probate Court “concurrent jurisdiction” over civil actions which include remedies under the Act, but only if a conservator has been appointed. (Welfare & Institutions Code §15657.3(a).) The complaint should reflect that there is a conservator and show in the prayer all those enhanced damages being sought, including punitive damages (if available under the facts), and attorney’s fees and costs. While there is an advantage of filing in probate court in that the court is more likely to be educated about issues affecting elders, it is important to know that there is no right to a jury trial under conservatorship proceedings. (Probate Code §7200.)

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