MEDICAL MALPRACTICE
A. AN OVERVIEW OF THE LAW Sometimes doctors, nurses or other health care providers make mistakes. Unfortunately, their mistakes can have serious consequences for patients or the patients’ family. When injury or death takes place because of such mistakes, you need experienced, competent representation to pursue appropriate claims. My firm concentrates on medical malpractice issues and represents only patients and their families. I have been a specialist in Obstetrics and Gynecology for more than 20 years. I also have experience in General Surgery, Emergency Medicine, and Internal Medicine. Prior to medical school, I worked as a Surgical Assistant and Male Nurse. In addition, I work with a team of medical experts to investigate each potential case. After thorough preparation and investigation of the medical issues, I then collaborate with reputable trial attorneys to expertly follow malpractice cases through jury verdicts, arbitration awards and settlements. In order to file a professional negligence case, four elements have to be present for the courts to consider the case. The elements for a cause of action in a malpractice case are: (1) the duty of the professional to use such skill and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) approximate causal connection between the negligent conduct and the resulting injury, and (4) actual loss or damage resulting from the professional’s negligence. 1. Negligence: Medical malpractice is defined as the failure on the part of the health care provider (doctor, nurse, hospital) to exercise that degree of care commonly exercised by other health care providers in the community under the same or similar circumstances. You need not prove that the health care provider intended to harm the patient; negligence is not an intentional act. When there is more than one medically acceptable way to treat a patient or to perform a surgery, the fact that most doctors do it a certain way does not mean a doctor has committed malpractice if he chooses to follow another, lesser but recognized, method. In other words, a difference in medical judgment is not malpractice.
In pursuing a malpractice case it is essential to secure the services of one or more expert witness. Since neither the patient nor the patient’s family are physicians, it really does not matter what they think was done wrong. The successful prosecution of the case requires an expert in the same medical specialty as the potential defendant to give testimony that the medical treatment fell below the applicable standard of care. I have been a physician and surgeon close to 30 years and have been on staff in many of Southern California’s finest hospitals and medical centers. This experience allows me to screen your medical records, hospital records, and related documents for their merit first, before selecting appropriate experts. I will only advise you to go ahead with the suit if all
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of us agree that your case has merit. Finally, appropriate paperwork, such as an agreement to employ and fee agreements, is completed and an “intent to sue letter,” also called the “90 day letter,” is mailed to the appropriate parties. 2. Damages: The California law applicable to medical malpractice claims is known as MICRA (The Medical Injury Compensation Reform Act). Since the mid 1970s, it has established certain limitations on the amount of damages that may be recovered. Damages are allowed for medical expenses and loss of earnings, as well as for impairment of earning capacity. In a wrongful death case damages are also given for the loss of support each heir has suffered. These are referred to as economic damages. The law recognizes a second category of damages, called non-economic damages. These are damages to be determined by the jury to compensate the patient for such items as pain and suffering, physical and mental injuries, permanent disability, and emotional suffering. In a death case these damages also include loss of love, society and comfort. Our law limits non-economic damages (pain and suffering) to $250,000. This is true even in a death case where the limit applies for non-economic damages on behalf of the heirs. The spouse of an injured patient also is entitled to claim damages for loss of consortium. This means essentially a claim for the loss of the injured spouse’s companionship, as well as for the loss of that spouse’s domestic services. The law places an additional $250,000 limit on a loss of consortium claim.
3. Informed Consent: A healthcare provider has a duty to obtain the consent of a patient before performing a surgical procedure or rendering a particular form of treatment. A patient must be informed of risks commonly encountered so that in agreeing to the procedure he is truly able to give an informed consent. This is known as the Doctrine of Informed Consent. In the representation of our clients we generally make a dual claim: for medical negligence, as well as for failure to obtain an informed consent from the patient. Just because a patient consents to a surgery does not mean that the patient consents to it being negligently performed. 4. Statute of Limitations: There are a number of other requirements under the law in terms of when the lawsuit must be filed. This is known as the Statute of Limitations and may vary based upon the facts in the case although, generally, a suit must be filed within one year from the date of injury or death. Sometimes additional time is allowed when there is a delayed discovery of the fact that the doctor was negligent. This technical area demands expertise, and often time is an important fact. Different time limits apply to minors. There
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are additional requirements when the health care provider is a governmental entity such as a County Hospital, the Veterans’ Administration, or a Hospital District.
B. DO YOU HAVE A VIABLE CASE? 1. Obtaining Records: The first thing we do in ascertaining the potential for a case is to ask the prospective client to prepare an outline of the facts in chronological order. By giving us this information, including the names and addresses of the doctors and hospitals and all applicable dates (to the best of the client’s recollection) the client enables us to make a preliminary determination as to how best to proceed. If the basic facts suggest there is a viable case, we have the client sign medical authorizations so that the pertinent records can be obtained through a photocopy service. 2. Medical Review: I then personally review the medical records to see if probable cause exists to conclude that malpractice has occurred. If the claim is meritorious, the medical records will be given to the most appropriate expert for review and consultation. If the expert and I agree with the medical negligence issue, we then take appropriate steps to get the lawsuit on file.
3. The Health Care Provider Must Approve Any Settlement: As you can see, this is a careful screening process. Malpractice cases generally are time consuming and expensive to pursue. We want to be sure that we have a viable case with appropriate expert support before undertaking the representation of a client. You can be sure that the defense will have some experienced experts of their own to counter our experts. It should be noted that before a case can be resolved by settlement (in our experience most of our cases do settle short of trial) the health care provider must consent to the settlement. Why? Under our law, all settlements, arbitration awards, or verdicts in excess of $30,000 must be reported to the State Medical Board. A physician does not lose his license to practice for an occasional act of negligence; the best doctor can occasionally make a mistake. A doctor, however, can lose his license to practice or have it suspended for a period of time if he is found to have been guilty of gross negligence or medical incompetence. The State Board does investigate each case and reserves the right to call the physician to appear before a review panel (Bureau of Medical Quality Assurance) to show cause why his license should not be suspended or revoked. Thus, insurance policies for doctors generally have a clause requiring the doctor’s written consent to any settlement in excess of $30,000.
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C. WHAT ABOUT ATTORNEY’S FEES AND COSTS? Attorney’s fees are on a contingent fee basis. This means that if there is no recovery, no fees need to be paid to the attorneys. However the costs of prosecuting the case are the responsibility of the client. On occasion such fees are advanced by the law firm. These costs include such things as Court filing fees, photocopying of medical records, depositions, and expert witness fees, as well as other court costs. When a recovery is obtained, these items are reimbursed to the attorneys. After the deduction of costs, the balance of the recovery is subject to attorney’s fees as provided by law. Presently, the law provides for a contingent fee of 40% of the first $50,000 of recovery, 33 1/3% of the next $50,000, 25% on the next $500,000, and 15% on any amount in excess of $600,000. We keep track of costs advanced and although we attempt to hold costs down, we do spend what we deem necessary for the proper preparation and prosecution of the case. Additional fees apply in the event of an appeal. There are no additional fees created by my association with another law firm. D. WHAT HAPPENS NEXT?
Once all pertinent records and any applicable x-rays or other studies have been obtained and reviewed, a lawsuit is prepared, filed and served upon the defendants. Their insurance carriers will retain counsel to represent them and a responsive pleading called an Answer To Complaint is filed. The case is then considered to be “at issue” and will soon be set for a Status Conference by the trial judge. At that time, a trial date and a settlement conference date are generally scheduled. The lawsuit must be filed within the court district where the injury or death occurred. Although there are some exceptions and some rules which give priorities, it generally takes some 12 or more months to get a trial date. In the meantime, a number of things take place. These include discovery proceedings, which take several forms: to include interrogatories (questions to be answered under oath in writing); depositions (the taking of pretrial oral testimony in the presence of a court reporter); defense medical exams where applicable, notices to produce documents for inspection, disclosure of expert witnesses and taking their deposition, settlement conference(s), and court Status Conferences. You will, of course, be assisted at every step of these pre-trial proceedings. We are always available to answer any questions. E. KNOWLEDGE AND EXPERIENCE COUNT Medical malpractice cases are generally considered to be the most difficult, timeconsuming and expensive cases trial lawyers handle. Statistically about 70% of the malpractice cases that go to trial are won by the defendant doctor. For that reason you need to hire a law firm with proven experience, available experts, financial backing and courtroom experience to prepare and, if necessary, to try your case. I will work with a firm most experienced in your area of malpractice. My firm, Gunther Rene Bauer M.D., J.D. provides the necessary medical knowledge within the legal framework. When I operate in the hospital, I am only assisted by other surgeons whose skill and knowledge I know, whom I can trust and rely on to give me their very best during the operation. So
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too, I only associate with law firms I can trust, with attorneys who concentrate on medical malpractice cases and have a track record of successfully litigating medical malpractice cases. Attorneys who defend healthcare providers are very skilled and have many resources available to them. For that reason, it is very important to associate only with a firm that is respected, and well-known to the defendant’s firm as experienced, knowledgeable and tough. This gives you, the client, the best chance for a satisfactory settlement and, if the case doesn’t settle, a much better chance to succeed at trial or arbitration. In other words the road to success is preparation, preparation, and more preparation. F. FINAL THOUGHTS People involved in a malpractice situation have a number of things to worry about, such as getting better, dealing with disability, or in death cases, dealing with the loss of a loved one. At least from the standpoint of the lawsuit, let us do the worrying for you. While I can make no representations or guarantees about the outcome of any case, please rest assured that we will strive at all times to secure a maximum recovery for you. The team working for you will be pleased to answer any questions you may have. You will be informed as to the progress we are making on your behalf. You will, of course, be apprised of all settlement offers. Cases can only be settled with the clients’ authorization. If you need more information about me or the law firm I have associated with for this case, we will be pleased to make this available to you.
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