Medical Malpractice Litigation in the 21st Century

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Contents

Introduction............................................................................................................viiChapter I Medical Malpractice Litigation in The 21st Century: The Antecedent Catastrophe...............................1Chapter II The Prospective Client Comes to You.........................................................................5Chapter III Marshalling the Facts - The Records........................................................................9Chapter IV Claims Prior to Suit........................................................................................11Chapter V Drafting The Complaint: Your Only Chance to "Talk" Directly With Your Client's Adversary.....................15Chapter VI Jurisdiction and Venue......................................................................................17Chapter VII Arbitration................................................................................................21Chapter VIII Discovery.................................................................................................25Chapter IX Pre-Trial Preparation, Mediation............................................................................31Chapter X Trial Or Arbitration.........................................................................................37Chapter XI Review And Appeal...........................................................................................53Chapter XII Attorney's Fees & MICRA....................................................................................55Afterword...............................................................................................................59Exhibit Index...........................................................................................................61

Chapter One

Since 1984, at the latest, victims of medical malpractice in California (and in more than a third of the states of the United States) have found, usually to their great surprise, that remedies are stunted and even in that form, difficult to obtain.

The problem dates back to 1975 and the catastrophe called MICRA ("The Medical Injury Compensation "Reform" Act"), sponsored by that evil solo physician trade group, the California Medical Association (CMA) and promoted and protected by Jerry ("Moonbeam") Brown, the former and current Governor of California. In brief, following the $ 7,000.000 campaign of hysteria and disinformation that was spread statewide in the spring and summer of 1975 ("There is a malpractice crisis!" "Our rates are skyrocketing!" "It's all the fault of parasitic patients and their greedy lawyers!") and aided by the inability of the small, weak plaintiff trial organization, the Consumer Attorneys of California (CAOC) to mount an effective counter-attack, the Legislature enacted, and Moonbeam signed, MICRA, a radical overhaul of two centuries of common-law remedies for the victims of physicians, hospitals, etc.

So what did the CMA want and get with MICRA? In a word: predictability – that is, it wanted its potential liability to be confined within virtually certain parameters. And the CMA got what it had sought. The key element of MICRA is Civil Code Section 3333.2, limiting damages for pain and suffering (euphemistically re-labeled as "non-economic" damages) to a mere $250,000. The other three major MICRA provisions were:

* Business & Professions Code Section 6146(a), limiting attorney fees so as to make it unappealing for attorneys to take on routine malpractice cases (i.e., those with limited damages), a very effective device since appellate judges were quite willing to stick it to plaintiff lawyers (see Shultz v. Harney (1994) 27 Cal. App. 4th 1611);

* Code of Civil Procedure § 667.7, providing for periodic payments of future damages over $ 50,000, with a vested judgment vanishing into thin air should the patient-victim inconveniently (for him and his family) die before the money runs out;

* Over the next nine years, the trial and appellate courts, by and large, recognized MICRA for what it was – a patently unconstitutional denial of equal protection of law. These courageous rulings, by and large, were made by appointees of former Governors Edmund "Pat" Brown and Ronald Reagan; however, as the years rolled by, appointees of Governor Edmund Brown, Jr., a.k.a. "Moonbeam" began to rule otherwise. Finally in 1984-1985, in the four MICRA cases (American Bank & Trust v. Community Hospital (1984) 35 Cal. 3d 359, Fein v Permanente Medical Group (1985) 38 Cal. 3d 137 Cal. 3d 920, the quartet of intellectual eunuchs all appointed to the California Supreme Court by Moonbeam, proceeded to rubber-stamp MICRA, while explicitly recognizing (although downplaying) that MICRA, on its face, denied equal protection: "We have not ... ignored the disparity in treatment which the statue (C.C.P. § 3333.2) in realistic terms imposes ..." (Fein v. Permanente Medical Group, (1985) 38 Cal. 3d 137, 163). So much for profiles in (judicial) courage.

Of course, medical malpractice crises are far from new. Since early to mid-nineteenth century, there have been periodic medical malpractice crises, pitting victimized patients against "Father knows Best" physicians (see Struve, "Doctors, The Adversary System and Procedural Reform", 72 Fordham Law Review 949 (2004). In the 20 years after the enactment of MICRA in 1975, 26 states followed California's malignant example and enacted limits on pain and suffering damages. However, many constitutional challenges to MICRA-type legislation were successful and, by the end of the previous millennium, just 20 states limited pain and suffering damages in medical malpractice actions (see Gregory, "Recent Developments in Health Care Law", 31 William Mitchell Law Review 1031, 1036, 1037 (2005). Unfortunately, California remained one of them.

Thus, to this date, half-hearted legislative efforts to modify, much less repeal MICRA outright, have failed. The reasons are obvious: no organized opposition; a lack of sufficient funds raised for the required political exertion; cowardly legislators fearful of the CMA's clout; a Democratic Governor (Davis) who had been Moonbeam's clone, and as much a "new Democrat" as his mentor; and finally a Republican Governor whose natural constituency included the CMA. The likelihood of MICRA's repeal, therefore, notwithstanding the total refutation of 44 years of retreat on victim's rights, is unlikely.

The balance of this book is intended to be a primer in medical malpractice guerilla warfare; that is, going around, underneath and through the holes in MICRA, so as to enable the attorney to obtain even a modest measure of compensation from the negligent health care provider, and/or his/her/its insured/indemnitor.

Chapter Two

Regardless of the means by which the prospective client reaches your office (satisfied client referral, third person recommendation, attorney referral or advertising) and whether or not the client interview proceeds in English or through a translator, it is imperative that you, the attorney, conduct the interview personally, and not delegate this task to a subordinate, a paralegal, or to even a physician who may be your regular consultant (at $300 per...