Medical Malpractice in California:
Do I have a case?
In a perfect world, everyone would be responsible for the injuries caused to another by his or her negligence. Until 1975, this general statement of policy was the law in California. However, politics took over 32 years ago, and our lawmakers accepted what many now consider a false argument - that doctors would go out of business unless they obtained relief from medical malpractice lawsuits. As a result, lawyers who want to represent injured people face laws that limit the recovery. For example:
- Recovery for pain and suffering damages is limited to $250,000 -- no matter how severe the injury or how debilitating the daily pain.
- Limits on the contingency fees that allow consumers to hire competent lawyers, with no limits on the fees charged by defense lawyers.
- Reduction of the economic benefit of any jury verdict over $50,000.
- Admitting evidence against the patient that would never be allowed in other types of injury cases.
- Forced arbitration in many cases, thus denying the right to a jury.
The deck is clearly stacked against the patient, and thus, many lawyers who used to handle medical malpractice cases no longer do so.
At Gordon, Edelstein, Krepack, Grant, Felton & Goldstein, LLP, we still believe that patients who have been severely injured due to neglect by a doctor, hospital or nursing home deserve representation. Unfortunately, legal and economic realities require that we carefully consider the facts presented in each case. We are only able to take on those cases where the law and the facts justify the time, expense and risk associated with litigation.
Perhaps the single most significant determining factor is whether or not the patient claiming medical malpractice has sustained economic damages, such as loss of past or future earnings, the ability to earn money in the workplace, substantial out-of-pocket medical expenses, future life-care costs and other similar types of damages. Many inquiries we receive involve real claims for pain and suffering, but no actual out-of-pocket expenses or likelihood of future loss of earnings or earning capacity. Because of the restrictive laws in California, we can rarely justify the time, expense and risk of litigation where the facts presented suggest "non-economic" damages that are "capped" by law.
There are other factors we consider in evaluating whether or not to take on a medical malpractice case. For example, can we prove a link between the actions of the doctor and the resulting injuries? In medicine, it is often the case that the medical condition would have happened even if the doctor had done everything correctly.
We also have to consider who rendered the health care. Is it a world-renowned doctor who has never been sued and who will easily be able to get other doctors to stand up for him? We consider the particular area of medicine and the nature of the care. Was care rendered in an emergency? Was it an elective surgical procedure where all risks and complications were explained to the patient?
These and many other factors receive our careful consideration in every case.
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