Doctor, You Amputated The Wrong Leg!

It has unexpectedly happened to tens of thousands of Californians! No one thinks they or a loved one, will be killed, maimed or disfigured by medical negligence. However accidents happen, whether it is by a doctor, lawyer, or pool boy putting too much chlorine into the pool. Experts say around 450,000 patients die each year of preventable medical errors. These errors are the third leading cause of death behind only cancer and heart disease.

Changes have been made to prevent medical errors. For instance doctors now put a marker on the leg or eye on which they are about to operate. In addition medical staff asks the patient several times which leg or eye is the one to be treated. Yet mistakes still take place. Many of these victims or their surviving family members call our office for assistance in filing a medical or legal malpractice claim.

The young and old have been victims of medical mistakes but to be a medical malpractice the mistake must fall below the Standard of Care expected of the medical community. One example is Mia Chavez who was six weeks old when she passed away because of whooping cough, a serious but treatable childhood illness if diagnosed correctly. In Mia’s case both her pediatrician and the ER doctor considered her ailment as something not very serious, even though LA County was in the midst of a serious whooping cough outbreak. Hence, this child needlessly lost her life.

There was also Tina Minasian who underwent abdominal surgery in 2002, suffering for months with an infection that left her mutilated at the site of the surgery. Unfortunately her surgeon was an alcoholic participating in a medical board alcohol diversion program supervised by an appointed monitor who just happened to be his office manager. Due to the botched surgery the doctor lost his license in 2012 for a decade.

It is both disappointing and frustrating for an attorney to tell a potential 65 year old retired client or surviving family member that their case has a maximum value of $250,000 for pain and suffering absent any economic loss. Most retirees no longer have any income and are thus limited by a 1975, $250,000 “cap” on damages for any malpractice causing death or loss of a limb, etc. These victims or their families often cannot understand why they cannot collect millions of dollar for the malpractice, or why a lawyer would REJECT the case.

There are justifiable reasons for an attorney to reject such a case. This $250,000 “cap” has not been adjusted for inflation, despite the cost of everything else skyrocketing over the past four decades. Legal expenses on these cases can run from $50,000 to $500,000 in costs. Needless to say it is not a wise investment for a lawyer to potentially expend $250,000 – $500,000 to get a total maximum recovery of $250,000.

Unfortunately it is true that this “cap” has been the law for 39 years because insurance companies have run expensive anti trial lawyer ads over the years. It is also true that this “cap” was unfair when it was instituted in the 70’s and has become worse today due to inflation. It seems many people complain about trial lawyers until a medical malpractice issue hits home with one of their loved ones. Then they understand that when dealing with insurance companies “You are not always in good hands and your friendly neighbor will not necessarily give you a piece of the rock.”

However, there is hope on the horizon with Prop 46 this November which would update the “cap” in California. This proposition has been passed in other states without personal medical insurance costs increasing. The insurance companies will argue that it is all about the money being made by lawyers who represent those harmed by medical negligence. However they won’t tell you that compensation for those lawyers is capped by law, a cap that would not change under Prop 46. The reality is that the vast majority of damages awarded will go to those harmed and not their attorneys.

Prop 46 will make Californians safer by requiring health care workers to be have random alcohol and drug tests like airline pilots, truck drivers, etc. It will also address prescription drug abuse by setting up a statewide internet database so doctors can check to see if a patient is “doctor shopping” to obtain drugs. This was the case with Michael Jackson and dozens of my clients over the years who all went to different doctors to get the same “pain pills”.

Please know medical and or legal malpractice is the exception rather than the rule. However the “cap” has not been adjusted for inflation, despite the cost of everything else skyrocketing over the past four decades. Hopefully this will be the year my readers understand the need to vote yes on Prop 46!