Re: Semi OT:Lacking lawyers, justice is denied
- From: "Chocolic" <chatter448@xxxxxxxxxxxxxxxxxx>
- Date: Sun, 30 Dec 2007 07:08:50 GMT
This article brings up huge memories of when my mother died. She was in a nursing home recuperating from complications from scar tissue from a previous surgery she had about 40 years ago which now was showing up in different ways including her kidneys. She was on kidney dialysis, which was supposed to be temporary if everything went well.
Anyway, it's a long story and I'll try to make it shorter. While she was there, she was on Coumadin, which is a blood thinner with huge red flag warnings about if there were any falls, or bruising, etc., to get medical help ASAP. Anyway, she fell and hit her head on the side of a door leaving a huge bruise blackening her eye and some swelling. They put her in her bed to recuperate.
They called the doctor that was treating her and he stated that he didn't need to see her until her usual Monday dialysis appointment. This happened on a Friday. They called him again, and again he stated he didn't want to see her until Monday. In the meantime, she was laying in bed in a daze, throwing up on herself and not cognizant of anybody around her.
Nobody (not the doctor, not the nursing home) called the family with concerns. A casual friend of hers visited her on Sunday and later she stated that my mother didn't recognize her and was not eating and was throwing up on herself. When I finally got the call on Monday that she was in the hospital and she had huge bleeding in her skull that had taken up about three fourths of her brain and that she was pretty much brain dead. Life support issues ensued.
After the family found out the details and reported the nursing home to the proper state authorities and they did an undercover investigation and discovered the nursing home was extremely negligent not only in her case but others. When an attorney was sought after all that, they did NOT want to touch the doctor. They said it is extremely expensive because doctors have the insurance and the money to fight tooth and nail. Since my mother was as old as she was, and was sick, and her life span was shorter, and she wasn't working and she had no dependents, that the value of the law suit wasn't enough to sue the doctor. Several attorneys were contacted and had the same answer.
I learned a freakin lot during that time. I'm sure the value of the law suit was determined the same way with a baby.
I do have to add, that I am totally against suing unless it is under extreme circumstances; (i.e., not an honest accident) and caused by extreme negligence.
Chocolic
"comadrejo" <comadrejo-t@xxxxxxxxxxx> wrote in message news:comadrejo-t-3F66FB.22305029122007@xxxxxxxxxxxxxxxxxxxx
http://tinyurl.com/2j4f4h
Lacking lawyers, justice is denied
Attorneys often avoid medical malpractice suits because California
limits 'pain and suffering' awards to $250,000.
By Daniel Costello
Los Angeles Times Staff Writer
December 29, 2007
Dave Stewart's 72-year-old mother went to Stanford University Medical
Center for double knee-replacement surgery in April. Four days later,
she was dead.
To Stewart, an anesthesiologist, it seemed a classic case of medical
malpractice. After the operation, his mother developed sharp abdominal
pain that she described as "10 on a scale of 1 to 10," according to her
medical records.
The hospital failed to diagnose the cause of her pain and continued to
treat her with narcotics. Her vital signs became unstable and she was
moved to the intensive care unit, but she died of complications from an
untreated bowel obstruction. State regulators cited the hospital in the
case this fall.
Stewart and his two sisters decided to sue, and they approached two
dozen lawyers. One after another declined to take the case, always for
the same reason: It wasn't worth the money.
In 1975, California enacted legislation capping malpractice payments
after an outcry from doctors and insurers that oversized awards and
skyrocketing insurance rates were driving physicians out of the state.
The law limited the amount of money for "pain and suffering" -- usually
the physical and emotional stress caused from an injury -- to $250,000.
There is no limit on what patients can collect for loss of future wages
or other expenses.
Over the years, it has been easy to quantify the effects of the law,
known as the Medical Injury Compensation Reform Act, or MICRA. In the
years since the law was enacted, malpractice premiums in California have
risen by just a third of the national average, and doctors say the law
now helps attract physicians to the state. Proponents also say it
discourages frivolous lawsuits.
Thirty states have enacted similar legislation. Two Republican
presidential candidates -- Mitt Romney and Rudolph W. Giuliani -- have
recently endorsed the approach as a possible national model.
It's been harder to tally the law's costs. Critics say it is
increasingly preventing victims and their families from getting their
day in court, especially low-income workers, children and the elderly.
Their reasoning: The cap on pain and suffering has never been raised nor
tied to inflation.
Meanwhile, the costs of putting on trials are often paid by attorneys
and continue to rise each year. That means those who rely mainly on pain
and suffering awards -- typically people who didn't make much money at
the time of their injury -- are increasingly unattractive to lawyers.
Several states have set their malpractice caps considerably higher than
California's because of worries that they affected poorer patients the
most. Some state courts have begun to examine the fairness of their
malpractice laws, especially those not tied to inflation. California
lawmakers have rarely reconsidered the state's malpractice legislation.
Yet a Times analysis of state court records, physician payment data and
insurer financial records suggests that the cap is increasingly
preventing families such as the Stewarts from getting their day in court.
Among the findings:
* Court malpractice filings have fallen in eight of the 10 most populous
counties in California that track such information. In Los Angeles,
they're down 48% since 2001 to their lowest per-capita level in nearly
four decades. In Orange County, they fell 29% over the same period
* At Kaiser Permanente, where members must resolve malpractice claims in
arbitration rather than court, claims have fallen almost 20% since 2001.
* The number of payments to victims and their families across the state
was down 24% since 1991, according to a review of a federal government
database of nearly half a million claims. Nationally, the decline over
the same period was 10%.
* The malpractice earnings of California insurers has far outpaced
national averages in recent years. According to financial reports,
insurers in the state have paid out just 39 cents of every premium
dollar since 1991. The national average was 63 cents.
Proponents of the law attribute the state's recent decline in
malpractice lawsuits to several reasons unrelated to its award cap,
including a slight drop in overall personal injury cases nationwide and
a possible decrease in medical errors in recent years.
Some states have seen larger per-capita declines in malpractice cases
than California, after they enacted caps on medical malpractice awards.
A spokesman for Kaiser Permanente said its drop in malpractice filings
was the result of a company program begun five years ago in which
doctors apologized to patients for errors rather than wait to fight the
accusations in court.
Some malpractice victims and their families say the benefits of the law
have swung too far in favor of doctors. Without accountability, some
ask, what will keep physicians from making careless mistakes?
Craig Backer of Caliente, near Bakersfield, suffered headaches for five
years and eventually lost hearing in his left ear. Although the former
Marine visited a Veterans Affairs hospital half a dozen times, doctors
told him his condition was temporary and never performed advanced
screening tests, according to his family.
Last spring, Backer began having problems with his vision and returned
for a battery of exams. Doctors discovered that he had a large brain
tumor and scheduled surgery days later. It was successful, but Backer
remains in the hospital and can't talk. He is also learning how to
swallow again, and the left side of his face droops. Doctors say they
don't know if he will improve.
His wife, Jeriah, wants to sue but the case is subject to California's
malpractice cap. Six lawyers have turned her down. One told her that
because her husband didn't earn a large income as a mechanic, the case
wasn't feasible. "We're living a nightmare," she said.
Linda Fermoyle Rice, one of the state's best-known malpractice lawyers,
says the law often leads to difficult trade-offs.
"It has had the effect of making an infant who is severely injured more
valuable than those who don't make it, since families of children who
die are limited to the cap," said Rice, who is based in Woodland Hills.
"It's sad to say, but most attorneys I know won't take a dead-baby case."
A 2003 Rand Corp. report found that the law has reduced jury awards by
30%, and that the savings have come largely at the expense of severely
injured or impaired patients.
On average, California juries (which are rarely informed of the cap
during trials) awarded $800,000 in malpractice death cases from 1995 to
1999, but the amounts were later reduced to $250,000 under the law. This
suggests that medical malpractice victims and their families could be
reaping much larger payouts than the law allows. But proponents of MICRA
say raising the cap could harm patients.
"Raising the MICRA cap would significantly increase healthcare costs,
limiting patient access to doctors, hospitals and clinics throughout
California," said Lisa Maas, executive director of Californians Allied
for Patient Protection, a trade group. "MICRA protects patient access to
healthcare."
San Diego obstetrician Philip Diamond is skeptical that the law is
keeping patients from obtaining malpractice lawyers. But he acknowledged
that limits on payouts do lead to trade-offs.
"If we raise the cap, where does that money come from?" he asked. "Any
increase means a drop in access."
The link between malpractice payouts and increases in doctors' insurance
premiums, though, remains unclear.
One of the largest studies done on the topic -- by Dartmouth College
researchers in 2003 -- concluded that malpractice payments had risen in
line with medical care costs, whereas doctors' insurance premiums grew
far faster -- by double-digit percentages annually for some specialties.
To some, that suggests that recent malpractice premium increases may
have had more to do with insurers' business models and financial
investments -- including documented losses in their investment
portfolios in recent years -- than with their core businesses.
Nationally, the rise in malpractice premiums has slowed in recent years.
"Just 16.2% of insurers raised their malpractice premiums in 2007
compared to 77.3% in 2003," said the Medical Liability Monitor, a
newsletter based in Chicago.
Douglas Heller, executive director of the Santa Monica-based Foundation
for Taxpayer and Consumer Rights, says the 1975 liability caps aren't
the reason that doctors' insurance premiums have been relatively low in
California. He says the reason is that, unlike other states, insurance
is tightly regulated here. In a 1988 statewide vote, Proposition 103
rolled back all casualty insurance rates by 20% and required the
approval of the state insurance commissioner for any rate increase.
Malpractice rates rose sixfold between 1975 and 1988 despite the state's
awards cap, Heller said, but have held roughly steady since Proposition
103's passage.
Stewart, of San Diego, said he had long been a MICRA advocate, believing
it was in the best interest of doctors and patients. Not anymore.
After he and his family got over the initial shock of losing their
mother, they wanted justice. Most attorneys turned them down over the
phone, although three agreed to meet in person. Last summer, the entire
family and their 80-year-old father made the trip to San Francisco and
Oakland for meetings.
One lawyer said he would take the case only if the family paid the
expected $50,000 in trial costs upfront.
San Francisco lawyer Brad Corsiglia at first seemed interested but later
sent a letter dated July 11, 2007, that read: "As you can understand,
with a cap of $250,000, we are limited in the type of case we can take
on a contingency fee basis to only those cases that involve catastrophic
economic losses."
"In 1975 you could buy a house for that money, and today what does it
get you?" asked Stewart, whose parents would have celebrated their 54th
anniversary last month. "Every year MICRA stays the same is another year
that people who have been wronged will be denied the same justice."
Stanford Medical Center declined to comment on the case.
Some state courts have struck down malpractice caps that didn't rise
over time. Last month, an Illinois circuit court judge ruled
unconstitutional a 2005 state law that caps noneconomic damages in
medical liability cases. The case is on appeal.
In 2006, a Louisiana appeals court ruled that its state malpractice cap,
established in 1975, did not adequately compensate patients and needed
to be raised to $1.6 million. The ruling was overturned this year by the
state's Supreme Court.
Some families who succeed at trial in California are often surprised at
how little money they see in the end.
Becky Dessenberger's 2-year-old son, Jacob, died at Children's Hospital
in Oakland in 2004 after surgery to repair a foot. Her son, who was
suffering from bronchitis, was given a high dose of pain medication
though the drug is known to cause slower breathing. He died the next day.
In 2006 the family settled with the hospital, which acknowledged no
wrongdoing, for just under the $250,000 cap. After deducting for trial
costs and lawyer fees, Dessenberger, 36, of Suisun City, said the family
received "a little over" $100,000.
Dessenberger said no money would help ease her grief, but the small
amount felt to her and her family like a slap in the face.
"Because he was a baby, this is all he was worth," she said. "I think it
is horrible. I don't think it's fair."
.
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