San Francisco Injury Attorney Blog

From time to time people in San Francisco, Oakland, and around the Bay Area ask me if they need an attorney to pursue a claim in the Kaiser malpractice arbitration system. Reading the Kaiser Arbitration Rules, you could easily get the impression that you could file a claim without a lawyer. The Kaiser arbitration administrator's website explains where you write to start your claim, etc. Unfortunately, proceeding with an arbitration claim involves all the same maneuvers involved in a lawsuit in court, and all the same rules apply. This is impossible for people most to do for two reasons: The first reason is simply that they are not lawyers, and do not know the law, such as the rules of Civil Procedure. The second reason is that the medical experts, who are vital for a Kaiser medical malpractice case, will normally not work with anyone but a lawyer.

Why won't medical experts "go direct" with a claimant in a Kaiser malpractice case in the San Francisco Bay Area? These experts already believe that they are sticking their necks out to be testifying against a fellow doctor. They want the discretion, protection and proper handling that a lawyer will likely provide, as well as assurance that their high fees will be promptly paid.

Kaiser malpractice arbitrations are normally heard from a lawyer or retired judge who is on the panel managed by the Office of the Independent Administrator. Every experienced Kaiser arbitrator's history file shows multiple cases where a person represented themselves, only to have the case lost to a Motion For Summary Judgment-a pre-arbitration motion to dismiss the case. Responding to one of these motions is very burdensome for an experienced attorney, and requires a very detailed declaration under penalty of perjury from a medical expert. Thus, very few people without lawyers ever get to actually attend a Kaiser arbitration.

Due to the high costs of bringing a case, and the M.I.C.R.A. law limits on fees and recoverable damages, many, many people with meritorious cases are unable to get a lawyer to take their Kaiser case. Unfortunately, the great majority of these people do not have any other way to proceed, and are forced to drop their cases.

Continue reading "Can I Arbitrate My San Francisco Kaiser Malpractice Case Without A Lawyer?" »

In the San Francisco Bay Area, most Kaiser medical malpractice claims in San Francisco and the Bay Area are normally heard in a private arbitration, rather than proceeding in court. This is due to the Kaiser arbitration agreement, which calls for arbitration in Kaiser's own system, uder their own rules. Arbitration is a system where cases are heard with the same procedural rules as a court trial, but in a private setting, before an arbitrator, or panel of three arbitrators, who serve as the judge.

The Kaiser malpractice arbitration system is overseen by an independent office. The independent administrator was set up after a notorious case where Kaiser delayed even choosing an arbitrator so long that the claimant died before the case could proceed, cutting Kaiser's liability substantially. Now, recent California court decisions have found that the forms Kaiser used until recently are invalid, for failing to comply with strict legal requirements that apply to waiver of the right to a jury trial. So for many people with malpractice claims against Kasier in Northern California, there is a choice: proceed under the Kaiser arbitration system for a malpractice claim, or sue in court.

The choice often will be heavily influenced by the venue of the case-the county in which a court case would be heard. If the venue is a big urban area such as Alameda County or San Francisco, lawyers agree that there is a much greater chance of getting jurors who are willing to find for a person suing a doctor or Kaiser. The individual facts of the case will also be part of the decision. The conventional wisdom is that in arbitration, even a victory will often be a compromise, compared to what a sympathetic jury might award. The Kaiser arbitration system draws from a panel of about 250 lawyers and judges, and many of these people are perceived as wanting to please Kaiser, such that attorneys for claimants would not see them as fair. Often it is a struggle getting a reasonable arbitrator in the Kaiser system.

The question of whether to opt out of the Kasier arbitration system for malpractice cases is one that will be largely, if not completely made by the attorney handling the case, but one that must be understood and approved by the client.

Continue reading "California Kaiser Malpractice Claims - Must/should you arbitrate? " »

Here's an out-of-state case that nonetheless illustrates a key hurdle clients with medical malpractice cases in California face. Former CBS "Early Show" personality Mark McEwen's medical malpractice case was recently dismissed by a Federal judge, on the grounds that he could not prove that the anti-stroke drug that doctors failed to give him would have prevented the disabling stroke he suffered. Shortly after McEwen went to an Emergency room with classic stroke symptoms, he was sent home with a stomach flu diagnosis. McEwen's attorneys, and presumably his medical experts, believed that if he had been given proper preventative treatment-aspirin and blood thinners--he would not have suffered the subsequent stroke that cost him his career.

This is a classic example of a malpractice case where it is easy to prove the doctors were negligent, but the case is lost due to an inability to meet the legal standard to prove causation. This causation requirement applies to all California cases. In any case involving failure to provide timely, correct treatment, you must also prove that, if the treatment had been given when it should have, you would "probably" have had a much different outcome. Here in California, "probably" means more than a 50% chance. So, if the treatment--be it radiation, pills, an operation, etc.--would have given you a 40% chance to avoid harm, there is no case.

This causation requirement can be very hard for a malpractice victim to accept. Explaining to clients that they don't have a case, even though there is clear evidence that a doctor committed malpractice is a tough part of my job. Some defense lawyers call this the "so what" defense, as in, "so what, you didn't get the care you should have, but you can't prove it would have helped you."

Of course, it's always hard for the medical experts we must have in these cases to perform this type of "what if" analysis, and tell us what would have happened to a patient if he/she had been given proper care at any given point in time. And doctors who are sued can almost always find experts to support a "so what" defense in cases of failure to treat or misdiagnosis.

In McEwen's case, he didn't even get to present the issue to a jury. His case was dismissed on a pre-trial motion. One bright spot in all this is that juries in California tend to give malpractice victims the benefit of the doubt on causation questions at trial, once a strong case of malpractice has been proved.

Continue reading "CBS's Mark McEwen Loses Medical Malpractice Case" »

Many Californians who seek advice about pursuing a medical malpractice case are very surprised to learn that there is a limit on the amount of "pain and suffering" damages that they can receive, that has not been increased since it was put in place over 35 years ago. The MICRA law, which was created in a special session of the legislature convened by then-governor Jerry Brown in 1975, limited "general damages"--the primary are of recovery for most victims of malpractice in California--to $250,000. That may sound like a lot of money, but not to someone who has lost a limb, or even a loved one to malpractice. Economists calculate that today's $250,000 is roughly equivalent to $65,000 in 1975. California is one of 35 states with a cap on malpractice awards, but many other states have a cost of living increase in their laws.

Now there is a case making its way to the California Supreme Court challenging the MICRA law and its cap on damages. The limits have been challenged before, but this case, Van Buren v. Evans, raises some new California constitutional objections to the law, as well as those based on the U.S. constitution. So far, the doctors have won the first round, as the challenge was rejected by the California Court of Appeal.
The MICRA law, which also limits attorneys fees, and permits doctors and their insurance companies to pay large awards in installments, has had a big impact on patients' ability to find attorneys. Each year, the value of the $250,00 cap is less, and the costs of litigating a case are greater. Thus there are less attorneys willing to take these cases with each passing year. The attorneys who do take the cases become more conservative in their case selection, leaving more and more malpractice victims unable to find counsel.

There is no cap, though, on recoveries for "economic" losses, such as loss of earnings. This results in an inherent bias against cases brought on behalf of children, or retired persons, who cannot prove any lost earnings. There is likewise no limit on recovery for future medical expenses, but many cases involving severe damages, including death cases, have no such expenses.

The lobbyists for the doctors and their insurers argue that if the cap is removed, or even allowed to adjust for the cost of living, the cost of malpractice insurance will go too high, and we will have a doctor shortage and increased health care costs in California. Nationwide, though, doctors' insurance amounts to only about one percent of health care costs.

Why isn't there more pressure from the public to increase the 35 year old cap on these malpractice damages? Probably because this is not an issue that most people concern themselves about, unless they or a member of their family experiences malpractice. It is difficult to get people really interested in changing a limit that they believe will never affect them. Many or most people are not even aware of the limits. Typically, people find out about the limits only after consulting a lawyer about a potential case.
Since this is not an issue that's likely to be the subject of a ballot proposition in California, the best chance for changing the MICRA limits law lie with legal challenges to the law, or in the new constitutional challenge now making its way through our courts.

Continue reading "New Challenge To California's Medical Malpractice Compensation Caps" »