Medical Malpractice Litigation

Medical MalpracticeThere are two roles the plaintiff as well as the defendant play: first, that of a story-teller; second, that of a game player.

For a doctor, winning means getting out without having to go through a trial, because even if you do go to a trial and win, you will end up paying considerable costs, not only monetary, but also physical and emotional. Therefore, the aim of the defense counsel is to make the claim go away as soon as possible.

Dwelling on the past in a defensive way prevents you from realizing the present and planning for the future. Remember: there are always two sides to every story, and there is ambiguity in everything people say (sometimes also in what they do).

Litigation Rules

Litigation rules in medical malpractice context fall into three categories: 1) substantive, 2) procedural, and 3) evidentiary. First, substantive rule is that of negligence: duty, breach, causation, damages. The key issue is the standard of care. Second, procedural rules determine how and when the substantive rule comes into play. Third, evidentiary rules determine what facts should be considered or precluded from consideration by the court, jury, or the arbitrator, in order to determine whether the substantive conditions of liability are satisfied.

MICRA Cal. Civ. Code. 3333.2. limits the non-economic damages to $250,000 and sets up a negotiable schedule for attorney recovery fees.

Collateral Source Rule is applied in personal injury cases, but may be partly barred in medical malpractice cases. Public policy reasons justify the rule, because we want people to obtain insurance. However, where such insurance should create extreme windfall to the plaintiff, the evidence of insurance payout(s) may be shown to the jury to mitigate the final damages award (lower the damages for the plaintiff).

The collateral source rule bars the fact-finder (jury) from hearing any evidence about insurance payments to the plaintiff, because the plaintiff paid the insurance premiums (which would, arguably, disadvantage them in trail).

Finally, should the damages exceed $50,000, a structured (periodic) judgment may be mandated. (Code of Civil Procedure Sec. 667.7 – the purpose being to make the money available when the plaintiff incurs the anticipated expenses or losses in future.)

The rule of Li v. Yellow Cab Co. 13 C 3d 804 (1975) abolished the rule of contributory negligence in California. Thus, comparative negligence doctrine applies – when the patient does not bide by the physician’s advice, he or she may be disadvantaged in claiming damages because the plaintiff’s fault is pro-rated to the physician’s.

Medical Malpractice – Basic Insurance Terms

Your Insurance Company (“IC”) has to cover: 1) losses, 2) legal defense costs, and 3) operating expenses. Everyone knows what these terms mean. The point is to spread the risk among the insureds, which is why it reviews each policy holder’s location and experience, and spreads the risk geographically as well as by discipline, which is why some doctors pay higher insurance than others.

Most ICs also maintain 80-90 per-cent of their investment portfolio in investment grade bonds, not stocks. As investment amounts rise or fall, the amount of subsidies to policy holders’ charges varies. Premiums match costs in low interest rate environments; by constrast, in higher return settings, the insurers may be able to settle the claims for less than costs and still remain solvent.

Policies are sold on claim basis, which means that the claim must be made during the policy period. Coverage may be extended back by adding a “nose coverage” (prior to the inception date of the policy) or forward, by adding a “tail coverage” (when the insured physician retires or moves to another IC).

Incurred loss represents the sum of losses actually paid plus the reserve costs for anticipated future losses. What the actual future losses are is called “development.” The reserve development may be up or down. If the ultimate cost of losses exceed the original reserve estimate, the IC is said to be “under-reserved.” If the actual reserves exceed the actual costs, the IC is said to be “over-reserved.”

Reinsurance is an agreement between ICs, under which one IC accepts all or part of the risk of the other.

IC’s Attorney

When the IC provides you with a lawyer, request his or her resume. Pick up the phone and ask the lawyer personal questions, questions about the lawyer’s experience and results so far, as well as about possible conflicts: has the lawyer ever been on the opposite side of the table? Does the lawyer know the opposing party’s attorney? Should the defending doctor have a cumis counsel on the case?

The importance of “good chemistry” is more important than the lawyer’s credentials. Go to Martindale-Hubbell for a brief bio.

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