Every doctor in Sonoma County can privately identify other physicians who are regarded as incompetent or are suspected of prescription drug abuse. Every doctor in Sonoma County can privately identify the surgeons and anesthesiologists he or she would permit in a surgery involving a family member, and those which he or she wouldn't permit. Unfortunately, these thoughts are seldom spoken in public.
Instead, physicians' groups and hospitals hide errors and abuses behind the confidentiality provisions of the peer review process. This approach leaves the public guessing where the worst risks of medical treatment are hidden.
These are the reasons a viable system of medical negligence (malpractice) litigation is necessary to protect the public. The threat of being held financially responsible for diagnostic and treatment errors is the only economic incentive that causes the medical establishment to police its own ranks.
I have been an attorney in Sonoma County for 38 years and have represented both sides (physicians and patients) in medical negligence cases. Without question, California law today unfairly favors doctors and their insurance companies at the expense of patients.
Sunday's Close to Home column defending the existing system ("Limits on medical suits healthy for all") was misleading in many respects.
First, the authors said current law permits unlimited punitive damages. Punitive damages are irrelevant in most medical litigation. They can be sought only when the physician's conduct is extreme, such as sexually assaulting an anesthetized patient or knowingly falsifying treatment records.
The authors stated that a patient is entitled to all economic damages, including lost wages, ignoring that the elderly, homemakers and children often have no economic damage because they aren't employed.
The authors also defended the $250,000 cap on noneconomic damages adopted in 1975.
What are "noneconomic" damages? If a hospital negligently operates on the wrong side of your body (it has happened) and removes your one healthy leg or lung, the loss of use of your body and your diminished life expectancy are noneconomic damage. If a doctor negligently performs a spinal tap and leaves you with a lifetime of excruciating headaches, those headaches are noneconomic damage. If a delayed diagnosis of cancer results in its spread, subjecting the patient to more invasive and prolonged treatment and a shortened life, these consequences are considered noneconomic damage.
If a bad driver hits you in a crosswalk and causes you to lose a leg, a jury will evaluate the resulting noneconomic loss. It will do exactly the same thing if you lose a leg because of a doctor's error. The leg is equally lost in both cases. The difference is that you will never be permitted to collect your full loss from the doctor or his insurance company.
In every case, your recovery of noneconomic loss will be limited to $250,000, from which you must pay attorney's fees, the cost of hiring expert witnesses to prove your case and all the other expenses of litigation.
Meanwhile, there is no limit on what the doctor's insurance company can spend to defeat your claim.
So what about attorney's fees? Most injured people cannot afford to pay an hourly fee to fight a large insurer. That is why contingent (percentage) fees exist. The malpractice fee cap progressively reduces the fee as the severity of the case increases. When the patient's total damages (economic and noneconomic) reach $600,000, the attorney's fee becomes only 10 percent of the amount awarded over $600,000.