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Malpractice Cap Should Teach Us Just How Unfair 'Victim-Bashing' Is

October 04, 1987|RUSSELL S. KUSSMAN | Russell S. Kussman is president of the Committee for Patients' Rights, a Los Angeles advocacy group that opposes the cap on compensation. A physician and a lawyer, Kussman represents patients in medical malpractice lawsuits

The medical malpractice victim in California is a three-time loser. He suffers physical injury at the hands of a negligent physician. Then, he is further victimized by the law and the courts. And finally, he is abandoned by the political process. Something must be done.

In 1975, during a so-called "insurance crisis" the powerful medical lobby rammed the Medical Injury Compensation Reform Act (MICRA) down the throats of the Legislature, under threat of a doctors' strike. MICRA (a distant cousin of the so-called "deep pockets" liability initiative passed last year) has been sticking in the craw of medical malpractice victims ever since.

Among its provisions--including a limit on the victim's (but not the defendant's) attorneys' fees--is a law that arbitrarily limits the amount one can recover for pain, suffering, and emotional distress to $250,000, regardless of the degree of injury. Severe brain damage, total paralysis, death, it matters not.

Although economic losses such as medical expenses and lost earnings are reimbursable, the most a person can recover beyond that for the total destruction of a normal life is $250,000. There has not even been an adjustment for inflation since 1975.

Our courts jumped on the victim-bashing bandwag on in 1985. While courts in other states declared such artificial caps an unconstitutional infringement on the right to trial by jury, the California Supreme Court held the law passed constitutional muster. Since then, MICRA has been applied to every medical malpractice case in the state.

Examples of injustice abound. Most notorious is the case of Harry Jordan, the Long Beach man whose surgeons removed his healthy kidney by mistake, leaving the diseased one behind and making him dependant on dialysis treatments for the rest of his life. The jury's verdict of $5 million was cut by MICRA to $250,000--insufficient to cover his court costs and attorney's fees.

In August, the 2nd District Court of Appeal in Los Angeles added insult to injury in the case of Charles Yates and his family. Charles and Dorothy Yates had been married for 35 years, and had five children. According to the court, "they had an extremely close and loving relationship, brought about in part, perhaps, because both were deaf mutes." Yates "also shared a special bond with his children . . . he was in frequent communication with four of his five children, and they visited him regularly."

During gallbladder surgery performed in 1982, Charles Yates' doctor tied off the wrong duct--the common bile duct--creating a life-threatening situation. When his doctor failed to properly evaluate post-operative complications, Yates died. At trial, all expert witnesses, including the defendant himself, testified that tying off the common bile duct violated the standard of care required of a reasonably prudent surgeon. Malpractice caused the patient's death.

After a jury heard all the evidence presented by both sides, they awarded the Yates family $1.5 million. The Court of Appeal, applying MICRA, held that the $250,000 cap on non-economic loss applied to all plaintiffs collectively, stating ". . . the maximum recovery permitted in any single medical malpractice action is $250,000, regardless of the number of plaintiffs involved. " Thus, each heir received an average of $41,666 before attorneys' fees as compensation for the unnecessary death of their loved one. So, the more children you have, the less they lose when you die! Justice is blind, but is it crazy, too?

More is involved than simply just compensation for the victim and his family. Deterrence of malpractice and accountability for one's actions is an important aspect of tort law. MICRA protects doctors--unlike the rest of us--from being held fully responsible for the consequences of their negligent actions. If a doctor hits you in the hospital parking lot with his car rendering you paraplegic, he is held accountable. But if his malpractice in the operating room causes the same injury, MICRA shields him from full liability.

Will the legislature repeal this unfair law? No chance. Indeed, they recently helped deliver the coup de grace to malpractice victims. For they are beholden to the powerful, wealthy special interest groups who brought us MICRA and Proposition 51. In mid-September, just before the end of the legislative session, a coalition of doctors, insurance companies, manufacturers, and other "tort reformers" joined with attorneys at a private meeting behind closed doors. There, they struck an unorthodox last-minute political/legal deal which would (among other things) insulate MICRA from repeal, or even amendment, for at least five more years. Key legislators helped negotiate the deal, and have vowed to enforce it.

Needless to say, injured and maimed malpractice victims were not invited to the meeting. They have no political clout. No lobbyist. No PAC fund. They are left out in the cold, without recourse in the law, the legislature, or the courts. Fortunately, our state constitution provides a court of last resort--the people. Through the initiative process, the people are still sovereign. The victims must now present their plight to the voters, and let them decide.

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