California's medical-malpractice reforms, passed in 1975, have mostly aided insurance companies and physicians--not the persons injured by medical negligence. In fact, most lawyers in California will simply not handle a medical-malpractice case.

The contingent fee allows those who can't pay a lawyer's hourly fees to take their cases to court. It provides a client the means to finance litigation with money essentially borrowed from the lawyer. If the lawyer loses, it is as if he or she made a bad loan.

Lawyers cannot earn a living by mak-ing bad loans, so they will only make loans when there is a good opportunity for a return. The sliding-scale limitation on the contingent fee, a provision of the California reform, further reduces these opportunities, since it has the effect of underestimating the amount of time needed for particular cases.

Medical-malpractice cases can take years to resolve and thousands of hours of attorney time. They are notoriously risky. Moreover, when the contingent-fee limitation is restricted to one area of tort law, such as medical malpractice, tort lawyers simply shift to more profitable areas of practice. This only makes it more difficult for medical-malpractice victims to obtain representation.

The result is that attorneys who handle these cases concentrate only on those that have high economic damages associated with them--cases involving "bad babies," wrongful-death of a breadwinner, demonstrable brain damage.

Indeed, entire categories of cases have been eliminated since malpractice reform was implemented in California. Victims in cases that have a value between $50,000 and $150,000 are basically without representation. For example, incidents of failure to diagnose an appendicitis still occur, but not many suits are filed in California. The reasons are simple:

* 80% of medical-malpractice cases that go to trial are won by the defendant medical practitioner;

* Medical-malpractice cases by their nature are expensive;

* Physicians in California, as in virtually all states, can withhold consent to settle and, therefore, control whether a case is settled or goes to trial;

* They are required to report malpractice settlements to the Medical Board of California.

If, by settling, a physician is to be reported to the board, he or she has little to lose by proceeding to trial, where the chances of success are 80%. Professionally, they are in a no-worse position if they lose, than they would be by being reported to the board. Under such conditions, given the expense to the plaintiff and the plaintiff's attorney, cases in the $50,000-$150,000 range are rarely filed.