A Lawyer's Guide to Successful Malpractice Litigation. In using this volume, keep in mind that it is a general view of what it is to be anticipated in prosecuting a medical malpractice case. However, no book is able to anticipate each situation and circ

Medical Malpractice Litigation in the 21st Century

By Nathaniel J. Friedman

AuthorHouse

Copyright © 2012 Nathaniel J. Friedman, Esq.
All right reserved.
ISBN: 978-1-4772-2033-7

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

Medical Malpractice Litigation in The 21st Century: The Antecedent Catastrophe

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

The Prospective Client Comes to You

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 hour, or more).

This is your first opportunity to "cross-examine" the prospective plaintiff: to interrogate him/her as to concrete factual details of the case and, most importantly, to determine, in light of your experience, whether this individual, family, etc., is a "saleable commodity" who will make a favorable impression on a jury, a judge or a "neutral" arbitrator. You should therefore ask yourself:

* Is this client well dressed and consistent with his/her economic station in life? If so, this bodes well. Or, on the other hand, does he/she affect bizarre dress, grooming (in particular, hairstyle), or bodily adornment, e.g., large jewelry, tattoos, etc.? In other words, first impression is important. Jurors judge plaintiffs (who, after all, are requesting a monetary award) first and foremost on their appearance, and only later (if at all) on the content of their character.

* Next, does the prospective client's body language betray something less than candor? This is especially likely to be true if he/she has been turned down by another lawyer. In that case, he/she may have learned what caused lawyer No. 1 to reject the case, and may attempt to gloss over the particularly negative facts.

* Then, has he/she brought the relevant medical records? Making sure that this occurs is the responsibility of the person charged with the first contact with a prospective client, whether that is yourself, paralegal or your secretary.

If upon speaking to the prospective client, that person affirms that serious and permanent injuries have been sustained and the experienced secretary has a good feeling about the case, the secretary should have a standing order to get that prospective client into the office ASAP, so that you may personally interview him/her and have him/her execute a retainer and medical authorization. Alternatively –as is more often the case- if the liability does not jump out at your or the experienced contact person in your office, the standing order should be to tell the prospective client to proceed with dispatch to the hospital, physician's office, etc. and to obtain copies of the relevant records, prior to scheduling an initial interview. Should the client respond to these instructions by asking why, this is a red flag. The best clients implicitly understand that theirs is to do, and NOT to ask why. In addition, only relatively small charges (perhaps $200-$300) ordinarily are involved in the copying of records, so if the prospective client questions the costs involved this is another red flag. A serious prospective client is willing to spend some money to obtain necessary record copies and the only client who is directed to obtain the records himself/herself should be told not to utter a word about having spoken with or seen a lawyer, for the moment a health care provider suspects that a lawsuit may be in the works (even though, at that point, there are no records available for review) red flags are raised and the chronic tendency of providers (especially solo practitioners) to falsify records comes to the fore.

Finally, when the prospective client goes out, as directed, and obtains the appropriate record copies necessary to review the case, he/she is signaling that he/she will be a compliant client who is ready, willing and able to do what is asked of him/her, promptly, without excuse and without delay.

Chapter Three

Marshalling the Facts - The Records

In ninety-five percent of malpractice cases, it is the medical record–made contemporaneously with the unfolding of the events underlying the client's claim, with entries made by persons with personal knowledge thereof- that wins (or loses) the case. The records may be computerized, handwritten, typed or a combination thereof. They may even be legible. Regardless, the medical record must be gone over with the proverbial fine tooth comb.

If the prospective client has already obtained the records, so much the better. If you have ordered them through your record copying service, it should be given a standing order not to reveal your firm's name, if this can possibly be avoided. It is uncanny how often records will be altered, modified or "misplaced" the instant that a medical institution or practitioner senses the presence of a lawyer.

The California Code sections relative to records include Evidence Code § 1158, Health & Safety Code § 123110 et seq. and, as to hospital records, Title 22 California Code of Regulations § 70747, 70749 and 70751.

Early in this century the California Legislature, throwing a bone to patients, enacted Health & Safety Code § 123111, allowing a patient (or, more often, the patient's attorney) to inspect his or her records and if he believes that they are incorrect or incomplete, to submit a 250-word statement that the provider is required to attach as an addendum to the record. Needless to say, you will want to take advantage of this provision. The statement should be sent to the provider by registered mail and should include a warning that in litigation between the patient and the health care provider and its liability insurer, the failure to include the statement in the patient's record may result in a jury instruction relative to spoliation of evidence. If the provider does not include the statements, failure of the court to instruct on spoliation of evidence should result in reversible error. Cedars Sinai Foundation v. Superior Court (1998) 18 Cal. 4th 1.

In ninety percent of the cases, the record review should reveal whether or not there is a meritorious case and this is where your medical consultant is most valuable. If you have enough experience reviewing records, your consultant's review should also confirm your conclusion, while perhaps uncovering a "gem" that you may have missed. Rarely will the consultant "overrule" a negative opinion that you have formulated.

If the case is meritorious and suit is instituted, the records custodian of all health care providers involved should be deposed, as it is not unusual for a discrepancy between the custodian's "original" chart and your previously-copied record to appear. At the deposition, the custodian's record should be bate-stamped page by page, in order to insure ongoing integrity of the official record. (The transcript of the custodian's testimony and the exhibit making up the "official" record should be bound in separate volumes.)

Once the record has been analyzed, you might want your medical consultant to aid you in constructing a timeline of events; this is particularly important in cases where the ultimate injury occurs after a series of contributory events. The timeline should be horizontal, not vertical, as judges and jurors are accustomed to reading across, not vertically.

Chapter Four

Claims Prior to Suit

If the medical malpractice defendant is a state governmental entity (e.g., county of L.A., owner and operator of LAC-USC Medical Center) then, as is the case with any other tort claim, the timely filing of a Government Tort Claim (Government Code § 901, et seq.) is a mandatory prerequisite to filing suit: Fail to file one at all and the reader is best advised to promptly notify his liability carrier.

Here the issue of "timeliness" is a major key. The statute requires the filing of the claim no later than six months after it has accrued (Government Code § 911.2). With medical malpractice, however, the two operative elements of the claim which need to be spelled out in the claim form –negligence and proximate causation- are rarely self-evident to a layperson (i.e., the patient). In fact, it is only when a firm diagnosis of brain damage, permanent injury from shoulder dystocia, etc., is reached (perhaps years after the incident giving rise to the claim), that the patient has reason to suspect an injury and some wrongful cause thereof. (See Fox v. Ethicon Endo-Surgery (2005) 35 Cal. 4th 797).

It is for this reason that Code of Civil Procedure § 340.5 provides that a medical malpractice claim accrues three years after the date of injury or one year after the plaintiff discovers, or reasonably should have discovered, the injury, whichever occurs first. In short, it is only when the lawyer has the chart reviewed by a qualified physician that the conclusion can be reached that the patient "knew" that he or she had a claim. (It should be evident why the lawyer should keep careful notes on (a) what he learned (knew) and (b) when he learned it since, as the client's agent, his/her knowledge is imputed to the client.

However, even if you serve a claim on the governmental entity immediately (indeed, even before the last breath has left the corpse), rest assured that the claim will be denied. What is worse (even though required by the Government Code) is the "advice" that the governmental entity will provide, at no cost, in its bureaucratic form letter, the "rejection of claim". The form letter will be informing you that the filing was "too late" and that, pursuant to Government Code § 911.3, the client's only recourse is to proceed to file an application to file a late claim.

Do not be misled! For a client to file an application for a late claim is an ADMISSION that he or she "had reason to suspect an injury and some wrongful cause", and was tardy in filing any required claim. Historically, this has been known as "Confession and Avoidance" and is not a strategy to be preferred. Instead, the moment that the late claim is denied, file your lawsuit, including the required allegation that "prior to the filling of this lawsuit, the plaintiff filed his/her Government Code required claims timely (especially if a minor whose application to file a late claim were rejected". (See Ng v. County of Los Angeles (1989) 207 Cal. App. 3d 946, 948; E.M. v. LAUSD (2011) 194 Cal.App. 4th 736, 744-5).

Note that the alleged failure to timely file a required Governmental Code claim(s) is an affirmative defense for the Government entity to plead (or to waive if not pleaded) and to prove, i.e. by contradicting the medical record as to the diagnosis and when it was first made AND by contradicting your client's testimony that "I'm not a medical person I didn't know what happened. I only learned what had happened when my lawyer told me the truth about what the health care providers had done to me".

As to claims against federal government entities, under the Federal Tort Claims Act (28 U.S.C. § 2671et seq.), a victim has two years (as contrasted California's six months) to file his/her claim. Again, the same rules apply; that is, the claim accrues upon the discovery of medical negligence and that said negligence was a proximate cause of injury. With federal claims (e.g., against V.A. Hospitals), when six months have elapsed since you filed the claim with the appropriate governmental agency, you should file your lawsuit –with, of course, the necessary allegation of the timely filing of the required claim and its rejection.

(Continues...)

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