The Fix: What California Jurors Are Never Told

Rosemary Roberts provides a very important perspective about the impact of medical malpractice lawsuits and the monetary awards. Her piece also underscores the importance of selecting an experienced and talented law firm to represent your case.-Kevin Knauss

The Fix: What California Jurors Are Never Told

And the Impact on a Young Paraplegic From Elk Grove

 

When your actions, inaction, or more specifically, wrongful action are found to be negligent and cause critical injury to a patient, and worse, you blame the young patient and her parents rather than acknowledge responsibility, we, the jury, will hold you accountable. 

That was, in essence, the jury’s message sent to a defiant defendant, UC Davis Medical Center, last fall, as the jury rendered Sacramento County’s largest medical malpractice verdict of $7.6 million— before the malpractice caps came into play.

The case involved a young woman from Elk Grove, California who had been misdiagnosed after being admitted to UCD in 2003.  As a result, an arteriovenous malformation (AVM) – a mass or lesion involving abnormal blood flow — that was visible on a MRI, but missed, remained on her spine, ultimately bleeding out and causing permanent damage to her spinal cord four years later.

Following emergency surgery, she was paralyzed from the chest down at the promising age of nineteen.

It would take years of expert testimony, agonizing trial motions and frustrating delays, as well as a heroic commitment from her attorneys, Brooks Cutter and Eric Ratinoff of Kershaw, Cutter & Ratinoff, LLP, who devoted the firm’s financial and staff resources to the case, for justice to prevail.

Through both deed and decision the heroes of justice, the jury, did what was asked of them. Without prejudice, they evaluated the mountain of evidence laid before them and unanimously agreed that damages were due within the confines of the law.

What jurors couldn’t have known, however, is that specifics regarding those ‘confines’ are sometimes omitted …withheld from the jury, disabling their noble efforts before a medical malpractice trial even begins.

Juries speak for a society of laws and accountability, not only by awarding known, existing damages when appropriate, such as previous and forecasted financial loss due to medical expenses, but also in determining what, if any, additional monetary value is placed on pain and suffering.

The value given to pain and suffering is described as Non-Economic Damages, as it can’t be calculated in strict financial (economic loss) terms.

In addition to the untold pain of future medical complications common to the paraplegic, the jury had to consider how permanent physical and emotional damages have or will, cause further suffering. What will it take for this woman to simply get out of bed each day and attempt to rebuild her life? What ongoing neurological pain will be present, challenging her every waking hour? What dreams and personal potential have been forever shattered? With a three-year old son to care for, how will her role as a mother, a provider, a wife (someday?) be altered? And how has her injury affected her relationship with family members and her need for their ongoing, day-to-day support? These damages fall under the term, ‘Pain and Suffering’ – Non-Economic Damages.

It’s within the context of non-economic damages that the rub exists …the lie, some like myself would say, by omission, to those of good faith who dutifully carry out their obligation to society as jurors.  They’re never told that the fix is in and that their collective due diligence regarding any award for pain and suffering may be reduced to fodder in the end.

When a defendant, such as a corporate wrongdoer, or in this case, a major medical center represented by a team of corporate insurance attorneys, drag a case out for years, not only refusing to accept liability, but indeed, attempt to tarnish the character and/or actions of an injured individual (or her parents) as a justifiable shift in blame …well, juries take that into consideration and often reflect their disdain in the value of an award for pain and suffering. They take into account the emotional trauma and added burden of a prolonged trial when deceit is proven, and fractured lives are left behind.

A large, non-economic award by a jury is more than a specific value placed on a specific incident or injury. It is a message, delivered by our peers: “You can’t escape responsibility to the whole person and the ‘whole’ of a life injured. Nor can you cause additional harm and hardship in the process with teams of corporate attorneys who are all too comfortable with the tactics of ‘delay, deny and dispute’ in an effort to outlast and out-finance an injured party.”

It is the size of non-economic awards that often force change (for the better) to occur, changes that protect society as a whole: safer paint, toys, cars and other products, updated standards of care and certification processes, and the elimination of harmful chemicals.

In addition to an award sufficient to cover the young woman’s life-long need for medical care, the jury awarded her $200,000 for past pain and suffering, and an additional $1,000,000 for future pain and suffering – Non-Economic Damages.

The reality of a life now burdened with challenges unimaginable by many, and the need to reinforce strict adherence to policy and standards of care by UC Davis Medical Center, was not lost on the jury. Through the value of non-economic damages, they spoke loud and clear on behalf of the plaintiff and society as a whole.

So where’s the “lie by omission”, you might ask?

Juries are never told that a $250,000 limit exists on awards for pain and suffering  — a financial cap on non-economic damages in California without exception.

Their honorable effort to compensate fully and award $1,200,000 to the plaintiff was automatically reduced to the maximum, $250,000.

Thirty years ago, after an aggressive campaign blaming attorneys and medical malpractice lawsuits as the cause of rising medical malpractice insurance rates for California physicians, the Medical Injury Compensation Reform Act of 1975 (MICRA) was passed, and as a result, an automatic limit was set regarding awards for pain and suffering, or non-economic damages.

The limit reduces any award, no matter how justified or worthy the need, even in the case of death, to a mere $250,000.

Jurors have a right to feel deceived and the injured fighting for justice understand that their rights under the constitution have been sacrificed.

Medical Malpractice Tort Reform remains still, a ruse …a Trojan horse put into play to do

one thing and one thing only – ensure that the financial loss of a medical malpractice insurance company is limited to an amount easily absorbed as a cost of doing business. It is about neither fairness nor reducing the strain on courts or medical providers.

It also reduces the ability of many attorneys to take a medical malpractice case because the costs of a lengthy trial — fighting for their clients — may be greater than the value of any judgment if they win, given the limitations. If you can’t find an attorney willing to bankrupt his or her firm, you can’t hold anyone accountable and their insurance company wins by default. No matter the evidence in your case, without an experienced attorney and the right to recovery, you may never see the inside of a courtroom.  This was, and remains, the ultimate goal of the insurance industry and medical malpractice tort reform.

Outside of her need for continued medical care, which was provided for separately, the large award for pain and suffering would have ensured a great many things for this woman …and her son. Considering her age today (twenty-three), $250,000 will be hard to stretch over a lifetime of challenges.

The law also punishes the young, the poor and women (who historically earn less income), disproportionally — those who at the time of a medical injury may not have achieved the economic means of others. Loss of wages is calculated in part, using current income and other economic factors, not the potential cut short in one’s life.

As an example: A young male executive in his 30’s earning $100,000 annually suffers the same medical injury. His compensation from loss of income is figured based upon his current and future earning potential through retirement, roughly $3.5 Million or more.

In this case, through no fault of her own, the young woman had not yet realized her educational or future earning potential, and thus, her loss of wage compensation is based upon an estimate of her earning potential which may fall well short of what she would have earned if not paralyzed.  She received only $904,903 in life-wage compensation, compared to our imaginary executive. A waitress or student making less would also be confined to the same life limiting, near poverty award, as if the future could be predicted and it revealed that they could never have achieved more.

Had the original $1.2M, non-economic award been upheld without the automatic reduction, it would have compensated in part for the low loss-of-wage benefit over her lifetime.

Lose a child to medical negligence? Well, there’s no ongoing need for medical expenses in the case of death, and obviously no lost wages, so as devastated as the parents might be, the defendant’s malpractice insurance provider gets off easy, as pain and suffering damages would make up the bulk of any award assigned by a jury. The award on behalf of the deceased child will be reduced to $250,000 plus any medical and/or death expenses paid out of pocket.  How does that sound? Fair?

Where’s the accountability? There is none. Nor is there enough financial pain experienced to force measures of prevention …measures that might prevent a similar tragedy from happening again.

For over three decades, the public has been fed a consistent story; that expensive lawsuits and greedy personal injury attorneys play a major role in the high cost of medical care, and further, are the cause of rising medical malpractice insurance rates, fueling the need for medical malpractice tort reform.

Nothing could be farther from the truth. Despite tort reform in California, premiums continued to rise over 120% during the decade that followed, and only through insurance reform in the 80’s did California physicians finally get a break and the gouging by insurance companies stop.

Today, the number of medical malpractice lawsuits filed has not risen, including for states without tort reform, but remain steady or have declined, and the average award remains $50,000 or less nationally.

The insurance lobby has been forced to admit that frivolous medical malpractice suits rarely occur, as they may in other civil actions, in part due to a process where pre-trial evidence must prove a compelling case or be denied a trial.

Still, within a political environment that caters to the financial influence of the insurance lobby, many are determined to see Medical Malpractice Tort Reform enacted nationally, and strengthened in states where tort reform already exists, like California, which already crushes its healthcare consumers with the lowest cap of all states in which tort reform has been enacted.

As the topic of healthcare reform continues to divide our country in the months ahead, listen closely and you’ll hear the battle cry to further limit your right to due process in a court of law and just compensation by a jury, all under the disguise of Medical Malpractice Tort Reform. As a nation, we must reject this.

And one more thing, if I may …given that attorneys, not their clients, pay the full expense of a medical malpractice trial (which often exceeds hundreds of thousands of dollars over multiple years) and bear the full financial risk if they lose, go easy on the jokes.

Remember that the fees earned by the courageous attorneys who fought so hard for justice in this case will afford them the resources to fight again on behalf of another …you or a loved one perhaps?

 

About the Author

Rosemary Roberts: A freelance writer specializing in healthcare and law, as well as founder and President of GirlOnPoint, Inc., Rosemary’s experience and voice has long been an advocate for consumers.