Robert N. Stone, Esq.
2002

MEDICAL MALPRACTICE: AN OVERVIEW OF THE LAW

Sometimes, doctors, nurses or other health care providers make mistakes. Unfortunately, their mistakes can have very serious consequences for the patient or the patients' family. When injury or death takes place because of these mistakes you need experienced, competent representation to pursue all appropriate claims.

The firm of STONE, DOLGINER & WENZEL for over 40 years has specialized in the representation of patients and their families. Working together with their team of medical experts, they thoroughly investigate each potential case. The firm excels in the preparation and trial of malpractice cases and has garnered millions of dollars of recoveries for their clients in such cases, through jury verdicts, arbitration awards and settlements.

1. NEGLIGENCE

Medical malpractice is defined as the failure on the part of the health care provider (doctor, nurse, hospital) to exercise that degree of care commonly exercised by other health care providers in the community under the same or similar circumstances. You need not prove that the health care provider intended to harm the patient; negligence is not an intentional act. When there is more than one medically acceptable way to treat a patient or to perform a surgery, the fact that most doctors do it a certain way does not mean a doctor has committed malpractice if he chooses to follow another lesser, but recognized, method. In other words, a difference in medical judgment is not malpractice.

Under California law, if a doctor, such as a general practitioner, undertakes to treat a patient who should have been referred to a specialist, he can be held liable to the same standard of care as the specialist, assuming such specialist is available in the community. Thus, a physician who tried to be all things to his patients does so at his own risk.

In pursuing a malpractice case it is essential to secure the services of one or more expert witnesses. Since neither the patient nor the patient's family are physicians it really does not matter what they think was done wrong. The successful prosecution of the case requires an expert in the same medical specialty as the potential defendant to give testimony that the medical treatment fell below the applicable standard of care. Our firm, based upon the handling of hundreds of malpractice cases over some 40 years, has acquired working relationships with a number of the best medical experts in the country. These experts are available on our behalf to review the medical charts, records and x-rays in a given case and, if they feel the case is meritorious, are willing to testify on behalf of our clients.

2. DAMAGES

The California law applicable to medical malpractice claims is known as MICRA. (The Medical Injury Compensation Reform Act) which, since the mid 1970's has established
certain limitations on the amount of damages that may be recovered.

Damages are allowed for medical expenses and loss of earnings as well as for impairment of earning capacity, according to proof. In a wrongful death case economic damages are also given the loss of earnings as well as for impairment of earning capacity, according to proof. In a wrongful death case economic damages are also given for the loss of support each heir has suffered. These are referred to as economic damages. Our firm employs the services of a Ph.D. economist to help evaluate the economic damages. The law places no limit on the maximum amount of economic damage, but the defendant health care provider may introduce evidence of medical insurance, sick leave, and other collateral benefits available to the patient. At trial the jury has the discretion whether these benefits should be deducted when considering their award of economic damages.

The law recognizes a second category of damages called non-economic damages. These are damages to be determined by the jury to compensate the patient for such items as pain and suffering, physical and mental injuries, permanent disability, and emotional suffering. In a death case these damages also include loss of love, society and comfort. Unfortunately, our law limits non-economic damages to $250,000. This is true even in a death case where this limit applies for non-economic damages on behalf of the heirs.

The spouse of an injured patient also is entitled to claim damages for loss of consortium. This means essentially a claim for the loss of the injured spouses' society and companionship, as well as for the loss of that spouses' domestic services. The law places an additional $250,000 limit on a loss of consortium claim.

3. INFORMED CONSENT

A health care provider has a duty to obtain the consent of a patient before performing a surgical procedure or rendering a particular form of treatment. A patient must be informed of those risks commonly to be encountered so that in agreeing to the procedure he is truly able to give an informed consent. This is known as the Doctrine of Informed Consent. In the representation of our clients we generally make a dual claim: for medical negligence, as well as for failure to obtain an informed consent from the patient. Just because a patient consents to a surgery does not mean that the patient consents to it being negligently performed.

4. STATUTE OF LIMITATIONS

There are a number of other requirements under the law in terms of when the lawsuit must be filed. This is known as the Statute of Limitations and may vary based upon the facts in the case although, generally, suit must be filed within one year from the date of injury or death. Sometimes additional time is allowed where there is a delayed discovery of the fact that the doctor was negligent. This is a technical area in which our firm has substantial experience. Thus time may indeed be a very important fact. Different time limits apply to minors. There are additional requirements when the health care provider is a governmental entity such as a County Hospital, the Veterans' Administration or a Hospital District.

DO YOU HAVE A VIABLE CASE?

1. Obtaining Records.

The first thing we do in ascertaining the potential for a case is to ask the prospective client to prepare an outline of the facts in chronological order. By giving us this information, including the names and addresses of the doctors and hospitals and all applicable dates (to the best of the client's recollection) we make a preliminary determination as to how to best proceed. If the basic facts suggest there is a viable case, we have the client sign medical authorizations so that the pertinent records can be obtained through our photocopy service.

2. Medical Review.

We then personally review the medical records, sometimes with the assistance of a Registered Nurse, to see if probable cause exists to conclude that malpractice has occurred. If we feel the claim is meritorious we then make the records available to one of our medical experts for review. If the expert is supportive, we then take appropriate steps to get the lawsuit on file.

3. The Health Care Provider Must Approve Any Settlement.

As you can see, this is a careful screening process. Malpractice cases generally are time consuming and expensive to pursue. We want to be sure that we have a viable case with appropriate expert support before undertaking the representation of a client. You can be sure that the defense will have some experienced experts of their own to counter our experts. It should be noted that before a case can be resolved by settlement (in our experience most of our cases do settle short of trial) the health care provider must consent to the settlement. Why?

Under our law, all settlements, arbitration awards, or verdicts in excess of $30,000 must be reported to the State Medical Board. A physician does not lose his license to practice for an occasional act of negligence; the best doctor can occasionally make a mistake. A doctor, however, can lose his license to practice or have it suspended for a period of time, if he is found to have been guilty of gross negligence or medical incompetence. The State Board does investigate each case and reserves the right to call the physician to appear before a review panel (Bureau of Medical Quality Assurance) to show cause why his license should not be suspended or revoked. Thus, insurance policies for doctors generally have a clause requiring the doctor's written consent to any settlement in excess of $30,000.

C. What About Attorney's Fees and Costs?

Attorney's fees are on a contingent fee basis. This means that if there is no recovery no fees need to be paid to the attorneys. Generally, the costs of prosecuting the case are advanced by the law firm. These costs include such things as Court filing fees, photocopying of medical records, depositions, and expert witness fees, as well as other court costs. When a recovery is obtained, these items are reimbursed to the attorneys. After the deduction of costs, the balance of the recovery is subject to attorneys' fees as provided by law. Presently, the law provides for a contingent fee of 40% of the first $50,000 of recovery, 33 1/3% of the next $50,000, 25% on the next $500,000 and 15% on any amount in excess of $600,000.

We keep track of costs advanced and although we attempt to hold costs down, we do spend what we deem necessary for the proper preparation and prosecution of the case. Additional fees apply in the event of an appeal. Of course, if there is no recovery our client owes us nothing. In other words, no recovery, no fee!

4. NOW THAT I HAVE RETAINED STONE, DOLGINER & WENZEL WHAT HAPPENS NEXT?

Once pertinent records and any applicable x-rays or other studies have been obtained and reviewed, a lawsuit is prepared, filed and served upon the defendants. Their insurance carriers will retain counsel to represent them and a responsive pleading called an Answer to Complaint is filed. The case is then considered to be "at issue" and will soon be set for a Status Conference by the trial judge. At that time, a trial date and a settlement conference date are generally scheduled. The lawsuit must be filed within the court district where the injury or death occurs. Although there are some exceptions and some rules which give priorities, it generally takes some 12 or more months to get a trial date. In the meantime a number of things take place. These include discovery proceedings, which take several forms to include interrogatories (questions to be answered under oath in writing); depositions (the taking of pre-trial oral testimony in the presence of a court reporter); defense medical exams where applicable, notices to produce documents for inspection, disclosure of expert witnesses and taking their deposition, settlement conference(s), and court Status Conferences. Our trained staff will, of course, assist our clients at every step of the pre-trial proceedings. We are always available to answer any questions.

5. EXPERIENCE COUNTS

Medical malpractice cases are generally considered to be the most difficult, time consuming and expensive cases trial lawyers handle. You need to have a law firm with proven experience and available experts together with the financial backing and courtroom experience to prepare and, if necessary, to try your case. The firm of STONE, DOLGINER & WENZEL has that ability. A list of representative cases and results is available upon request. The attorneys who defend health care providers in malpractice cases limit their practice to such cases and are quite skilled and have many resources available to them. We handle cases against these firms day in and day out. Although most of our cases settle short of trial we prepare every case as though it were eventually going to trial. In doing so, we negotiate from a position of strength and our opponents respect us. We feel that our preparation and expertise garner top dollar for our clients. We absolutely keep you informed as to the progress we are making on your behalf. We will keep you informed as to all settlement negotiations and will not settle any case without our clients' authority. Many of our cases are referred to us by other attorneys because of our expertise in this area of the law.

People involved in a malpractice situation have a number of things to worry about, such as getting better, dealing with disability, or in death cases, dealing with the loss of a loved one. At least from the standpoint of the lawsuit, let us do the worrying for you.

While we can make no representations or guarantees about the outcome of any case, please rest assured that we will strive at all times to do our best to secure a maximum recovery for you. We will be pleased to answer any questions you may have. If you need more information as to our experience, including trial skills and accomplishments, we will be pleased to make this available to you.

6. FREE CONSULTATION.

It costs nothing to discuss your potential case with us. Please call or email us for a confidential consultation.

Call Toll Free: 1 (800) 577-4511
Fax: 1 (310) 643-0095