Caps on damage awards hurt patients

In July of 2010, six-week old Mia Chavez was taken to an L.A. emergency room with a worsening cough. Her doctor, believing that the cough was a symptom of the common cold, sent Mia home with antibiotics. A week later the infant died during her second visit to the ER; the cause, pertussis, a flu-like strain of whooping cough on the rise in L.A. County. Public health officials had previously circulated warnings about the illness, warnings of which Mia’s doctors were well aware. Tragically, none of the simple tests for whooping cough were run and the antibiotics which were prescribed probably decreased the tiny infant’s capacity to fight the disease on her own.

In January of 2009, 17 year old Olivia Cull walked up the steps of Mattel Children's Hospital UCLA in Westwood for a routine heart catheterization, the last in a long line of procedures designed to correct a minor birth defect. Olivia, a top student already admitted to Smith College, never left the hospital. An intern, unlicensed to practice medicine at UCLA, removed Olivia’s heart catheter without supervision and Olivia slipped into a coma. A few days later while parents Robert and Joyce Cull struggled with the decision to terminate life support, Olivia’s 11 year old sister crawled into the hospital bed with her; a nurse sobbed in the corner.

The thread that ties these tragic stories together does not end with the malpractice that caused their deaths, but extends to the gross undervaluation of their lives under current California law. The girls were each subject to the inequities created by a California which was passed in 1975 in an attempt at insurance reform. The law, known as the Medical Injury Compensation Reform Act (MICRA – Cal. Civ. Code 3333.2), limits non-economic damages in medical malpractice suits to $250,000 – the legally imposed value of a child’s life in cases of doctor negligence.

Manufactured insurance scare

Enacted in the face of a now discredited insurance industry panic about the rapidly rising costs of malpractice insurance, MICRA was proposed as a an ineffective solution to a problem that did not exist. In the 12 years that followed the passage of the law, insurance rates for malpractice skyrocketed an astounding 190%, stopped only by the much more sensible passage of proposition 103 in 1988 which brought malpractice rates under the regulation of the California Department of Insurance. Despite the scandal surrounding MICRA it has continued unchanged for almost 40 years, never once adjusted for inflation; a flaw which has reduced the economic impact of the $250,000 cap by about 75% over the last three decades.

An abject failure

While targeted at ballooning malpractice insurance premiums, MICRA has done nothing to help the doctors who often fight for it, but has instead served to line the pockets of California’s malpractice insurance providers. Under California law, insurance companies are required to maintain a reserve fund for use in paying future claims. Medical malpractice carriers in the State, however, have used increasing profits to build up enormous reserves despite the fact that they routinely over-estimate future claims. Each of the three largest carriers in the state have, at least once over the course of the last ten years, carried a reserve account as much as 10 times larger than the required amount. In fact, despite their claims about the growing costs of medical malpractice suits, California carriers pay out an average of only 25% of their gross receipts to such claims, holding the rest for lawyer’s fees, administrative costs, and profits.

National efforts

Despite the complete failure of MICRA to reduce insurance rates in California, and the tragic consequences disproportionately dealt to the poor, unemployed, elderly, and children, proponents of such caps have taken the fight nationwide. After MICRA, 23 states enacted some sort of pain and suffering damages cap and bills have recently circled in Washington that would impose a similar Federal cap, ostensibly as part of the national effort to reduce healthcare costs. Ironically, many of the proponents of such a cap themselves earn more per year then they allow for a lifetime of patient pain and suffering.

Doctors’ groups such as the AMA and the American College of Obstetrics and Gynecologists have been vocal supporters of caps on a patients legal rights while simultaneously opposing similar caps on their own ability to sue health insurance companies for unfair practices; a conflict only recently recognized by the AMA when it chose to drop efforts to advocate against caps on insurance company lawsuits, instead focusing exclusively on limiting patient lawsuits nationally.

Bottom line

Olivia’s and Mia’s heartbreaking stories are not isolated incidents. Medical malpractice is a growing problem which kills as many as 390,000 people annually, making it the most deadly national health concern after heart disease and cancer. Yet many victims are unable to even find a lawyer capable of shouldering the substantial costs associated with the complex legal proceedings surrounding medical malpractice cases; costs which can routinely run over $100,000 not counting legal fees.

It is time to revisit MICRA in California to ensure that patients, not insurance companies’ profits, are protected under the law.

Private Settlements Are a Big Risk

If you are the victim of a car accident and are wondering whether you should accept the other party’s offer to settle privately, without involving the insurances companies, you might turn to Google for advice. Unfortunately, many of the results that turn up are user comments on non-legal forums where non-attorneys attempt to explain the complications of a vehicle collision. Despite this dearth of expert advice, many people keep trying, driven by a fear that their insurance rates will be raised if they report the accident to the authorities.

While private settlements might seem like a convenient way to avoid the potential hassles of dealing with insurance adjusters and claims processors, these types of arrangements are almost always a bad idea; at least without some input from an experienced attorney. There are just too many potential complications of which many people may be unaware. The following are some examples of the types of problems you might encounter during a private settlement attempt.

Who’s at fault?

California follows what is known as the Pure Comparative Fault Rule. Under our system an accident victim can file a lawsuit against the person at fault, even if the victim partially caused the accident. For example, let’s say you're in a car accident with another driver. At trial the jury determines that you were 10% at fault for the accident and that your total damages are $100,000. Under California law, you’ll be able to collect 90% of those damages from the other party; or $90,000. Of course, you may also have to pay them for the 10% of damages you caused them.

The situation gets dramatically more complex in cases where the plaintiff is more than 50% at fault. Without qualified legal advice, you may not know for sure who is legally responsible for your injuries or for how much each party will ultimately be liable. Trying to guess can be costly.

Damage calculations

Estimating exactly what a settlement is worth, poses a challenge even for experienced attorneys. Questions abound, such as: will the injuries create a permanent disability, have the full extent of the injuries been discovered, and how lost wages or other income should, be calculated.  There is a lot to consider, and this list barely scratches the surface. Without expert advice, your estimate of the damages or injuries might be way off the mark. Ultimately this means that you may be accepting an offer which grossly under compensates you for your injuries.

Insurance misconceptions

Many people considering a private settlement are worried that their insurance rates will skyrocket if they report an accident, even one in which they were not at fault. I wish that there was an easy way to settle this question but the truth is the situation is a bit more complicated. How an accident will affect your rates is determined by the particular insurance company involved. For some companies, rate increases are only assessed against drivers who are at-fault in a collision. In other situations the severity of the incident or the amount of damage is a critical factor. In today’s competitive insurance market, some insurers actually market policies that include accident forgiveness clauses designed to prevent rate increases associated with certain types of collisions. Ultimately you will have to check with your particular insurer for details. However, it is unwise to attempt a private settlement merely out of fear that your rates will go up.

Notification

While they may not raise your rates for reporting an accident in which you were not primarily at fault, not reporting an accident can give the insurance company a reason not to pay for any later claims you may decide to file for the incident. This is because most policies have a notification clause that requires you to give them a fair opportunity to duly investigate the situation. If you do not tell them in time, and the delay ends up hurting their ability to protect themselves legally, they may be able to avoid paying on your claim.

Don't forget the DMV

While not reporting an incident to your insurance company is a matter of choice – albeit with some consequences for choosing poorly – reporting to the DMV is not optional. Under California law any accident with over $750 in damage or with any personal injury – no matter how minor - must be reported within 10 days of the incident. Both parties must file this report, regardless of fault. Furthermore, if any party was uninsured at the time of the incident, the DMV will still impose sanctions on that person including suspending their license for one year.

Dishonesty, double-dipping, and fraud

Even if you avoid the minefield presented by the above issues, there’s sometimes no accounting for human ingenuity. Without the benefit of deep insurance pockets, you may have a very difficult time actually collecting on your private settlement; especially if you agreed to take payments. Personal checks are often no good, and by the time you figure this out it might be too late to find the person. In every accident you should always take down insurance and driver’s license details from all parties involved, in addition to taking pictures of the scene and any damage. This way, even if you accept a private settlement up front, you’ll have some recourse if things go south later on.

Hire a lawyer

Hire an attorney! I know this might seem suspect coming from an attorney, but I hope I've convinced you that it’s good advice. Settling your accident privately is legally and financially risky and the motivations for doing so are weak at best. Get the legal help you need and avoid years of potential headache down the road. Your attempt to save a few bucks in the short term might end up costing you everything.

National Dog Bite Awareness Week

Fatal Mauling

In April, a 63 year old woman was attacked by a pack of pit bulls while jogging in her home town a few miles outside of Los Angeles. The horrific story caught national media attention and has since been reported across the country. According to investigators, the woman was mauled by at least four pit bulls. A witness called 911 and attempted to scare away the dogs by honking a car horn. A few minutes later, one of the dogs turned on the responding officer who was forced to fire his gun at the animal to keep it at bay. The jogger was rushed to a local hospital but died en route.

Police and animal control workers have impounded six large dogs, four pit bulls and two mixed breeds, from a local resident. While serving a warrant at that location, police discovered a hidden marijuana “grow” operation and arrested the occupant. It is unclear if these are the dogs that attacked the woman, DNA tests are being conducted, but it is possible that the owner kept the dogs intentionally aggressive as guards for his illegal operation in which case he may face criminal charges.

National Dog Bite Awareness Week

With National Dog Bite Awareness week starting May 19, this tragic attack serves as a stark reminder of the consequences of keeping uncontrolled pets. Unfortunately, California ranks first in number of dog bite attacks annually, with Los Angeles holding the dubious distinction as the worst city for Postal Worker dog bites; 69 last year.

According to statistics compiled by State Farm Insurance, there were over 16 thousand dog bite claims filed in 2012 at an average cost of almost $30,000 per claim; up $10,000 per claim since 2003. In anticipation of Dog Bit Awareness Week, the United States Postal Service released its 2012 report which recites several disturbing statistics. According to the report, the AMA estimates that Dog Bites are the most commonly reported public health issue for small children who are 900 times more likely to be bitten than a postal worker. In total, 4.7 million people were the victims of reported dog attacks in the United States in 2012 alone, many more attacks go unreported each year.

Financial Liability

What many people don’t realize is that the owner of a dog involved in an attack may be financially liable. Owners have a duty to maintain control over animals under their care; a failure to meet that duty can result in liability. In addition, many such attacks are covered under homeowners’ insurance policies providing a stable source from which to collect a judgment or settlement.

Staying Safe

To prevent attacks, avoid aggressive dogs on your route. Even dogs that appear to be restrained can sometimes break free and attack. If a dog is behaving aggressively it is best to steer clear entirely. Keep an eye on small children; they are particularly vulnerable to dog attacks. It is a good idea to read the Postal Service report on the subject; it contains a number of excellent tips for avoiding a dog attack.

If you are attacked by a dog, your first priority should be your safety. Once the immediate danger has passed, it’s critical that you see your doctor. Even if a bite seems minimal, some dogs can carry diseases, such as rabies, and small bites can still become infected. Your health and safety should always come first.

Get legal help

If you have been attacked by a dog, contact an attorney for help with your case. You deserve compensation. There is a good chance that the owner of the dog that attacked you can be held liable for your injuries.

A Jury of Your Peers

On April 25, the California Assembly passed AB 1401 which would allow lawfully present immigrants to serve on state juries. As of this writing, the bill is making its way through the state Senate. While the bill’s ultimate fate is unknown, its mere introduction earlier in April caused a ruckus in the news media and its passage in the Assembly has sparked a firestorm of public opinion. Despite clear language to the contrary, some sources are going so far as to announce that the bill will allow “illegal immigrants to serve on juries”. Just to be clear, it won’t; but scroll through the comments on any of the articles covering AB 1401 and it quickly becomes clear that the bill has ignited a raging controversy over civil rights, immigration issues, and the nature of citizenship itself.

Instead of discussing or arguing about immigration policies, I have decided to provide defendants and their families with relevant information about what the bill’s passage might mean in practice. After some research into the history of the Jury Right, here is what I found.

The right to a trial…

The Sixth Amendment to the United States Constitution opens with the line “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury”. Contrary to popular belief, the Constitution says nothing explicit about a “jury of peers”. This latter construction comes not from the document itself, but from later interpretation and public colloquy. However, despite the lack of an express constitutional mandate that defendants be judged by their peers, the sanctity and power of an impartial jury remains one of only a handful of subjects about which the Supreme Court has ever ruled in unanimity. Which begs the question, how is an impartial jury composed and where does everyone get the idea that criminal guilt will be determined by a group of the defendant’s peers?

by a jury…

The notion of using juries to judge criminal guilt was well established in legal practice long before the Constitution was drafted. In fact, the practice traces its roots all the way back to the signing of the Magna Carta in the 13^th Century. Early iterations of the practice were designed more for the benefit of the British royalty than common criminals. However, by the 18^th century Thomas Blackstone was able to pen his famous exposition on the twofold virtue of the jury right as a protection against overreaching by the monarchy. Enshrined in every one of the original 13 State Constitutions, and in all States since added to the Union, this right has always been the core feature of American criminal jurisprudence.

The right to a jury trial reflects a fundamental decision not to entrust the life or liberty of any person wholly to the government. Even an impartial judiciary, it is thought, might at times be swayed by outside considerations making the jury trial a bulwark against many possible miscarriages of justice. In fact, so critical is this right to our criminal system, that without it, we could have no enduring faith in even a single criminal conviction.

Juries work so well because of the high degree of inviolability afforded them under our legal structure. So sacred are the judgments made by juries, that the Supreme Court has unanimously agreed that juries even have the power to find a defendant not guilty against the great weight of the evidence. The entire body of facts in a criminal case is determined by the jury, and no fact decided in a defendant’s favor by a jury is subject to later review.

of peers?

But who makes up the jury pool remains an open question. In years past women, minorities, atheists, and non-landholders were deemed unqualified to sit on juries. Each of these restrictions has since been struck down. However, despite these many gradual improvements, disparities between jury venires and defendants are still rampant. Jury lists, often drawn from voter registration and DMV rolls, represent a largely middle-class group with frequent racial and ideological tilt. Are such juries truly “impartial” as required by the Constitution?

AB 1401

The California Assembly does not think so and AB 1401 represents their attempt to remedy one aspect of the issue. Whether the bill, if passed, will help rather than hurt our justice system remains to be determined.

I remain optimistic that our jury right will ultimately grow stronger as a result of this broadened juror pool. Bear in mind, judges and attorneys do not have to be citizens, perhaps jurors should not either. However, time will be the ultimate judge.