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Justice Denied?

Those seeking to file medical malpractice suits have hit a barrier -- few lawyers willing to take their cases because of a cap on damages

August 01, 2004|Lisa Girion | Times Staff Writer

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.

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