Better hope you are never the victim of medical malpractice

by Brian Leubitz [courtesy of Calitics - Front Page]

Because no lawyers will even take your case. Take, for example, the story of a woman who died because doctors didn't treat a bowel obstruction.

Dave Stewart's 72-year-old mother went to Stanford University Medical Center for double knee-replacement surgery in April. Four days later, she was dead. To Stewart, an anesthesiologist, it seemed a classic case of medical malpractice. After the operation, his mother developed sharp abdominal pain that she described as "10 on a scale of 1 to 10," according to her medical records.

The hospital failed to diagnose the cause of her pain and continued to treat her with narcotics. Her vital signs became unstable and she was moved to the intensive care unit, but she died of complications from an untreated bowel obstruction. State regulators cited the hospital in the case this fall. Stewart and his two sisters decided to sue, and they approached two dozen lawyers. One after another declined to take the case, always for the same reason: It wasn't worth the money. (LA Times 12/28/07)

See, the thing is that back in 1975 when the state passed its "landmark" tort deform (as my old tort professor was fond of saying), the legislature capped damages for pain and suffering at $250,000. That's it, and the law didn't bother to index for inflation. So that $250,000 is only about $65,000 in today's dollars. And given the costs involved in litigation these days, there's a lot of investment and risk for not a lot of return.  So the saying is, if you mess up, make sure you really mess up and kill the patient, it's cheaper that way.

It's a perverse incentive to the medical community of this state, and it's a travesty of justice to patients who are victimized by medical malpractice. The fact is that the tort laws in this state, supposedly a progressive bastion, are remarkably anti-consumer and very un-progressive.  Corporations routinely get off because they can afford to maintain a legal staff, while individuals are left with nothing when they are damaged.

Look, the point of tort law is to put the victim in the same place they would have been but for the actions of the culpable party.  It's clear that, at least in California, that is no longer true.  Corporations have held sway too long in this state, and it's time to see the pendulum swing back again in the favor of everyday Californians.