Those seeking to file medical malpractice suits have hit a barrier -- few
lawyers willing to take their cases because of a cap on damages
By Lisa
Girion Times Staff Writer
August 1, 2004
With emergency room
doctors and nurses swirling around her in November, Michelle Geyer stroked and
kissed her 7-year-old daughter's pale face, urging her to live.
"I was
telling her, 'We're going to go to Disneyland. We're going to get through this,
honey. You can do it, baby. Come on,' " Geyer recalled.
Jessie Marie
Geyer didn't make it.
According to autopsy results, Jessie died of septic
syndrome caused by a bacterial infection that is commonly treated with
antibiotics. Days earlier in another emergency room, Michelle said, a doctor had
missed the problem.
Michelle and her husband, Mark, wanted to know what
had happened. They got comforting words from their pediatrician and from the
hospital where Jessie had been treated. But they didn't get the answers they
were after, so they decided to sue.
The Antioch, Calif., couple figured
they would have their pick of the Bay Area's finest malpractice
lawyers.
Instead, four lawyers turned them down— not because they viewed
the case as a loser, but because the most it could win was $250,000. A fifth,
attorney Jeffrey Mitchell in San Francisco, finally took the case, and in May he
filed suit in Contra Costa County, alleging negligence by a pediatrician, a
local hospital and an emergency room doctor who treated Jessie. The defendants
declined to comment.
The Geyers say that what almost shut them out of the
courthouse is the $250,000 limit on noneconomic damages, such as pain and
suffering, set by a landmark 1975 California malpractice law. There are no caps
on jury awards for economic damages, such as lost wages and medical
expenses.
California's malpractice law has been cited by some — including
President Bush — as a national model for tort reform. Supporters point out that
the state's malpractice insurance rates have risen less than half the national
average since the cap took effect.
Yet insurers report no decline in the
rate of malpractice suits per doctor since the cap went into effect.
"No
person with a valid claim for malpractice is going without a lawyer," said
attorney Fred Hiestand, who runs Californians Allied for Patient Protection, a
Sacramento-based group representing the California Medical Assn. and insurance
companies.
But in California, the malpractice law is coming under
increasing fire.
Some critics of the $250,000 cap have pointed to a
recent Rand Corp. study, which showed that in 45% of malpractice cases that went
to trial, judges had to cut noneconomic damage awards by juries — who are not
told about the cap. On average, California juries awarded $800,000 in
malpractice death cases from 1995 to 1999, Rand found.
In some eyes, that
suggests that medical malpractice victims and their families should be reaping
much larger payouts than the law allows.
Meanwhile, many lawyers say they
routinely turn away malpractice cases that face the $250,000 cap without the
possibility of winning additional damages for lost wages or medical costs. They
note that the cap has never been adjusted for inflation, while the cost of
bringing a complex malpractice case to court is much higher than it was in
1975.
Lawyers turned down Jessie Geyer's case because, as a matter of
wrongful death, it was "not worth it" to them, Michelle said. "You are just
going to spend up the cap going to trial."
State Sen. Tom Torlakson
(D-Antioch) was so moved by the Geyers' plight that he decided to draft a bill
to lift the malpractice award cap in California to at least $900,000.
"That cap, at $250,000, is outdated by over a quarter of a century,"
Torlakson said. "It's not only unfair, but it doesn't provide the level of
deterrence or accountability that I think should be there."
At the same
time, the Foundation for Taxpayer and Consumer Rights is considering sponsoring
a ballot initiative to repeal the malpractice cap. The advocacy group believes
that what has kept the lid on premiums are legal challenges to malpractice
insurers' requested rate increases — not the cap on damages.
"If the
truly innocent victims of negligence and shoddy healthcare are victimized by the
cap law, then it fundamentally doesn't work," said the foundation's executive
director, Doug Heller.
The Geyers' saga began when Michelle took Jessie
to the family's pediatrician in late October. Her daughter was running a fever
and had a painfully swollen knee.
The pediatrician sent them to the
emergency room at John Muir Medical Center in Walnut Creek and telephoned ahead,
advising doctors there he suspected a "septic knee," according to Mitchell, the
Geyers' lawyer, who has reviewed the medical records with
experts.
Mitchell contends that the emergency room doctor should have
tapped the child's knee and tested the fluid for a bacterial infection. Even
without that, he said, Jessie's blood tests should have tipped him
off.
But the doctor's diagnosis was that Jessie had a virus, Mitchell
said. Instead of prescribing antibiotics, which would have treated the bacterial
infection, he sent Jessie home with instructions to give her over-the-counter
pain relievers.
Calling the Geyer case "very sad," Dr. Jack Lewin, head
of the California Medical Assn., said it underscored a social
dilemma.
"If malpractice rates continue to go up, doctors will not want
to take high-risk patients," he said. "There's the trade-off. Do you have access
to doctors in an emergency, or do you have access to lawyers in the rare event
that something goes wrong?"
Russell Kussman, a Los Angeles physician
turned malpractice attorney, is among those who are wary of taking on cases that
can fall under the $250,000 cap.
It can easily cost $100,000 to bring a
malpractice case to trial, he said, by the time expert witnesses, court
reporters and others are paid. Even if he wins a capped malpractice trial,
Kussman figures that he may earn $50,000 in the end — not nearly enough to
justify the many hours such a case requires.
Still, Kussman occasionally
hears of cases that he can't turn away.
That's what happened when the
daughters of a woman who had died of breast cancer alleged that their mother had
been informed that a malignant biopsy was negative. The two women claim the
error wasn't noticed until their mother went back for a routine visit 18 months
later. "By then, it was too late," Kussman said.
In capped cases,
$250,000 is usually the starting point for defense lawyers in settlement
negotiations, Kussman said. "They try to negotiate you down from
there."
In the breast cancer case, he remembers one defense lawyer
telling him, "I can't believe you're taking this. It's a 250 case."
"They
should come to me," Kussman asserted, "and say, 'This is terrible. Here's the
$250,000. It's the least we can do.' "
But Howard Mandel, a Los Angeles
obstetrician-gynecologist, believes that the reason lawyers don't want to take
capped claims is that they can make so much more on cases with unlimited
economic damages, such as lost wages and ongoing medical costs.
The
malpractice cap has done nothing to stop those suits, he said, and the fear of
getting hit with a huge damage award remains.
"You don't want to be in a
situation where an emergency room doctor taking care of you is unhappy because
they are afraid they are going to get sued," Mandel said. "The money we're
wasting to protect our backsides could be spent" providing coverage for
uninsured people.
Indeed, Hiestand said, doctors, hospitals and
malpractice insurers are getting hit with ever-larger economic damage
awards.
Without the malpractice cap law, "they'd be sunk," he said.
"Settlements are driven by verdicts, and they have been going up astronomically
because of the economic damage component. If you don't find some way to control
that, that's going to be the next crisis."
Nine months after Jessie's
death, the Geyers are still reeling from their loss.
"We will never be
the same," said Michelle Geyer, a small woman who has lost 26 pounds. "I'm skin
and bones. I had to start my counseling again…. I'm just withering
away."
Michelle said her two sons, Jamison, 4, and Jordan, 5, are having
trouble coping with the idea that death is final. Jordan recently requested that
his mother go open Jessie's "angel's box" and ask the doctor to try
again.
Another day, he piled up his most cherished toys, and the boy told
his mother he didn't want them. "I just want my sister," he said. "Bring back my
sister."
"I just held him," Michelle recalled, "and said, 'I wish I
could, sweetie.' "
