Medical Malpractice – Plaintiffs Often Victimized Twice

April 30, 2007

Victims of medical malpractice are often disillusioned when they learn just how unfriendly California law is to them, and how many legal hurdles they face. Because of these obstacles, many are victimized twice: first by the injurious medical treatment; and second by California’s woefully unfair laws that limit or preclude compensation. Through aggressive and creative representation in medical malpractice cases, the Law Offices of Aitken * Aitken * Cohn have effectively leveled the playing field for the benefit of hundreds of medical malpractice victims in the widest variety of cases.

Perhaps no California law is so blatantly unfair to the public as California’s Medical Malpractice laws. Since the mid-1970”s, California law has limited awards for pain, suffering, emotional distress and other non-economic damages to a maximum of $250,000. This means that even where, for example, a new-born child is catastrophically brain-injured due to medical malpractice, the State of California values the suffering from a life long disability (which often requires wheelchair dependence and full-time attendant care) at no more than $250,000. This artificial “cap” on damages has never been increased for almost 30 years — and represents an egregious unfairness to already under-compensated victims.

In addition, although medical malpractice victims also can be compensated for the full value of their economic loss (for examples, past and future medical bills and/or past and future loss of earnings); they almost always receive smaller monetary awards than persons with similarinjuries due to other causes (such asautomobile accidents or defective products). One reason for this is because the law allows medical malpractice defense attorneys to inform juries about public benefits (like social security disability, Medi-Cal, and health insurance) that an injured victim might qualify for in the future — in effort to persuade the jurors that less money is needed to make the injured person whole. The practical effect therefore is to force injured victims with life long needs to seek out public benefits to pay for future costs (thereby burdening already over-burdened social programs) rather than simply requiring the responsible defendant’s insurance carrier to pay for these costs. Thereafter, more often than not, the alleged source of public benefit then denies the payment or is otherwise unavailable, leaving the injured victim with no source of recovery. In no other area of personal injury law are insurance defense attorneys permitted to inform jurors about these so-called “collateral sources” of payment. The ultimate result is that victims of medical malpractice go under-compensated in virtually every case. For this reason, Aitken * Aitken * Cohn takes a highly sophisticated and creative approach to calculating future economic damages and their value — to maximize results for our medical malpractice clients.

It is also noted that attorneys fees in medical malpractice cases are “capped” as well. The effect of doing so is to dissuade many competent attorneys from taking on medical malpractice cases at all. After all, why should an attorney take on a case with a cap on damages and a cap on fees, when he or she can earn a higher fee percentage on a case with a larger award — and with less work and less costs? Because fewer competent attorneys are therefore willing to handle medical malpractice cases, there is yet another significant overall advantage for the defense.

Ironically, with all of the above noted legal obstacles to contend with, medical malpractice matters are also the most complex and labor intensive type of all personal injury cases. No medical malpractice case can be/should be filed without the case first being carefully “screened” and reviewed by well-qualified medical experts. This initial screening alone often costs thousands of dollars. Further, it is by far more difficult for plaintiff’s attorneys to find willing and supportive experts to testify in cases of medical malpractice than for defense attorneys with doctors/nurses/hospitals as their clients. Additionally, in our experience, we have seen first hand that unscrupulous defense “experts” will go so far as to claim in medical terms that the “moon is made of green cheese” to help defend their medical brethren in court. Enormous effort, time and resources are usually required to rebut this allegedly “scientific” evidence. For these reasons, preparation for trial in any medical malpractice case (even the least complex) is always intense, and requires mastery of the medical and scientific issues involved at every level.

Despite these challenges, the Law Offices of Aitken * Aitken * Cohn embraces the opportunity to level the playing field in representing medical malpractice victims and their families in the most aggressive and sophisticated possible manner. In so doing, compensation for our clients is only one goal. The firm takes great pride in helping to assure a future where top-rate medical care is delivered at all levels in California. By representing medical malpractice victims, Aitken * Aitken * Cohn plays an important role in policing the medical community, enforcing standards of care that are already in place, and insuring that defense attorneys and insurers are not able to “lower the bar” — so that future recipients of medical care do not also become victimized by California’s already unfair set of medical malpractice laws.