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Blogs from May, 2013


Last month, after a 4-week trial and 3 days of deliberation, a Ventura County jury returned a $6,786,774.31 verdict for our client who was permanently disfigured after what should have been a routine mitral valve replacement surgery. The defendant heart surgeon was repeatedly negligent in both surgical and post-operative care, causing heart trauma that reduced circulation of oxygenated blood to our client's extremities. Tragically, our client was forced to have all of her fingers and both of her feet amputated.

Before deliberation, the jury was given a special verdict form and was instructed to allocate money damages into two separate categories: economic and non-economic losses. Here, the economic losses account for past and future medical expenses. Non-economic losses account for past and future physical pain, mental suffering, loss of enjoyment of life, disfigurement, physical impairment, inconvenience, grief, anxiety, humiliation, and emotional distress. Of the $6,786,774.31 verdict, the jury allocated $1,000,000 for non-economic damages.

Unfortunately, our client's non-economic damages will be reduced from $1,000,000 to $250,000. This is because of the Medical Injury Compensation Reform Act of 1975 (MICRA), which caps non-economic damages at $250,000 regardless of the factual circumstances. MICRA was codified in 1975 as CA Civil Code section 3333.2 and it makes no distinction between temporary/minor injuries and permanent/catastrophic injuries. Moreover, the MICRA cap has not been indexed to inflation.

According to the calculation above, the MICRA cap would be $1.091 million today if it was indexed to inflation.

In order to get MICRA passed, lobbyists assured the legislature that damage caps in medical malpractice cases would end what were at the time becoming prohibitively expensive medical malpractice insurance premiums. However, studies show that MICRA had little to no effect on premiums while insurance companies' profits increased at the expense of medical malpractice victims.

First, MICRA artificially caps jury verdicts; and it does so in an insidious way. Since plaintiff lawyers are prohibited from mentioning the MICRA cap in medical malpractice trials (and jurors are prohibited from doing any outside research during their service), most juries are unaware that their verdicts will later be reduced. The jury that rendered a $6,786,774.31 verdict for our client could possible have determined the non-economic damages to be worth $10-15 million. Had they done that, they might have shortchanged the economic damages in an effort to be expeditious. In anticipation of that possibility, Steven understated non-economic damages in this trial and instead focused his case on economic damages. Even though Steven did not suggest a specific amount for non-economic damages, the jury determined the value to be $1,000,000. Had Steven suggested only $250,000, that might have given the jury the wrong impression about the significance of what happened to our client. Had Steven suggested an amount that approaches the true value of losing one's fingers and feet, the jury might have then discounted the economic damages. Thus, MICRA not only caps non-economic damages, but also it manipulates verdicts in ways juries cannot foresee.

Second, by lowering the value of medical malpractice cases, MICRA limits medical malpractice victims' access to justice. Most plaintiffs hire medical malpractice lawyers on a contingency fee basis because they cannot afford to pay an hourly rate. Moreover, medical malpractice trials involve ridiculously high costs because (1) a major component is proving that a medical professional was negligent and (2) medical malpractice cases often involve complex medicine. For example, our recent case involved 12 experts: two cardiac surgeons, two pulmonary and critical care specialists, a rheumatology expert, an orthopedist, an internist, two rehab nurses, a prosthetist, and two economists. Plaintiffs who cannot pay their lawyers on an hourly rate also cannot pay costs that can be upwards of $200,000. Thus, the plaintiff lawyers who handle medical malpractice cases almost always advance the costs while working on a contingency fee basis. As it happens, plaintiff lawyers take a substantial financial risk each time they try a case. By artificially capping jury verdicts, MICRA also artificially caps contingency fees and makes many cases simply too expensive for even the most risk tolerant lawyers to handle. MICRA also places artificial limits on the fee percentages plaintiff lawyers can charge for their work, which creates an even greater financial disincentive for plaintiff lawyers to take medical malpractice cases. This makes little sense considering that medical malpractice trials can be more complex than any other types of personal injury trials. If medical malpractice victims cannot find competent lawyers to try their cases, then they have no way to attain legal justice.

Our client's recent verdict is a success in that she will never have to worry about the financial expense of the medical care she needs relating to the loss of her fingers and feet. However, $250,000 for the physical pain, mental suffering, loss of enjoyment of life, disfigurement, physical impairment, inconvenience, grief, anxiety, humiliation, and emotional distress concomitant with such a devastating loss is an absolute injustice. Our client, a victim of medical malpractice, has become a victim of MICRA as well. Unfortunately, she is not alone.

See the video below to hear Bob Pack's story and what he plans to do about it:

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