This month’s issue is about small firms and small firm practice. The vast majority of work I do is done on a contingency basis (attorney fees are a percentage of total settlement), which could be problematic if I was at a small firm or solo practice. Fee structures like this result in an uneven cash-flow. If I was a solo practitioner, weeks or even months could go by without settling a single case and without any fees being earned. This uneven flow of funds would become even more problematic when expenses, such as rent and employee payroll, are considered. It would be unreasonable to expect staff to wait for a case to settle to get paid. It may even affect what cases I decided to take. Chiefly, I’d probably take a lot less medical malpractice cases.
Since at least 1975 and the formation of the Medical Injury Compensation Reform Act (MICRA), medical malpractice laws have been greatly slanted in favor of medical personnel.
Due to things such as the cap on general damages ($250,000 set in 1975 and never adjusted for inflation); very short time limits for the commencement of an action (generally only one year); and statutorily set attorney fees, it is very hard for injured plaintiffs to find an attorney willing to take a medical malpractice case. These difficulties are all compounded for a solo practitioner.
Additionally, case law since MICRA’s inception has only acted to broaden its scope, making medical malpractice cases less and less practical to pursue each year.
A year ago, the case of Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75 had harsh effects for potential plaintiffs. Ms. Flores was injured when one of the rails on her hospital bed collapsed as she was attempting to get out of bed. The rail had been raised pursuant to doctor’s orders and evidence showed that it collapsed because the hospital had been negligent in maintaining its equipment, including the bed in question. Ms. Flores sued, alleging that the hospital’s negligent failure to inspect and maintain its beds led to her injury. The hospital demurred on the grounds that the complaint, while filed well within the general two year statute of limitations for negligence in California, was not filed within the one year statute of limitations for medical malpractice claims. The trial court granted the demurrer. On appeal, plaintiff argued that the failure to maintain hospital equipment was ordinary negligence and not “professional negligence” governed by MICRA. The California Supreme Court disagreed, finding that the case fell under MICRA’s medical malpractice umbrella and Ms. Flores was precluded from pursuing her claim because it was filed more than one year after the date of her injury. Was the hospital’s failure to maintain its beds really medical malpractice?
A more recent case, Cuevas v. Contra Costa County (2017) Cal App. LEXIS 390, 11 Cal.App.5th 163, expands the reach of MICRA, yet again, in a way unfavorable for injured parties. The plaintiff, Brian Cuevas, is an infant who was born with severe brain damage due to the negligence of his mother’s doctor. He will be dependent on the care of others for the rest of his life. At trial, the jury found in favor of Brian Cuevas and awarded him $9,577,000 as the present cash value of his future medical care and rehabilitation care expenses. This number was only a fraction of the $29 million present cash value amount calculated by plaintiff’s experts and requested by plaintiff. The defendants argued that plaintiff’s future medical expenses should only be $3.2 million. When the jury returned a verdict for $9.5 million, the defendants promptly appealed the ruling.
On appeal, the defendants argued that, because of the Affordable Care Act (ACA or Obamacare), it should have been allowed to tell the jury that the plaintiff’s future medical needs would be partially provided for by Obamacare and should be valued much lower than the $9.5 million awarded. The trial court barred any mention of the ACA by the defendants at the time of trial as being evidence of a collateral source under Civil Code Section 3333.1.
The appellate court reversed, finding that Civil Code Section 3333.1 permits the introduction of evidence regarding future as well as past medical benefits. The court determined that the trial court’s decision to exclude evidence of future insurance benefits that might be available under the ACA, on the basis that the ACA might not be in existence in the future, was an abuse of discretion. Thus, it was error for the jury not to consider that some of the plaintiff’s future medical care may be covered, in part, by Obamacare. The appellate court reversed the judgment, remanding it for new trial on the amount of plaintiff’s future medical damages – such that a jury may consider Obamacare and its effect in diminishing the value of plaintiff’s future damages.
Though the jury’s verdict was well below the amount calculated by plaintiff’s experts (by $20 million), the court found that the jury must take into account that Obamacare may exist to provide services for the plaintiff in the future. In turn, the doctor should receive the benefit of this potential collateral source, thereby reducing the judgment owed by her (insurance) for the lifetime of treatment she inflicted upon Brian Cuevas. Let’s not also forget that the value of the lifetime of pain and suffering Brian Cuevas is guaranteed to suffer is limited to $250,000.00.
It’s getting increasingly difficult to pursue a medical malpractice case in California and I suspect that, without changes to the law, small firms and solo practitioners will not be handling them at all in the future. Due to MICRA and surrounding case law, juries may be prevented from awarding an amount that the jury feels is fair. The attorney is prevented from contracting for a price that she feels is fair, and all must be done within short time limits.
Practically speaking, fewer attorneys are willing to take medical malpractice cases and MICRA has emboldened malpractice insurance carriers to take cases all the way to trial, instead of settling the cases, because their potential exposure is capped. As a result, this significantly increases the cost of litigation for plaintiffs. All of this results in the prevention of people who have legitimate, but smaller, malpractice complaints from ever finding an attorney. This effectively limits many victims' access to the courts.
Jean-Simon Serrano is an associate attorney with the law firm of Heiting & Irwin.