Why medical malpractice still matters (Part 5 of 5)

Many attorneys and most Californians do not remember that before MICRA was enacted by the Legislature in 1975, the California Medical Association and the California Hospital Association conducted a study to determine if it would be less expensive for doctors and hospitals in California for the Legislature to adopt a no-fault type of system similar to Workers' Compensation, where an injured plaintiff would be able to collect a specified amount of damages for any injury that occurred in a hospital. Obviously the amount of payment would be low to offset the number of claims which would not require any proof of actual negligence.

However, what the CMA and CHA discovered was that less than three percent of all acts of negligence causing injury in a hospital ever resulted in a medical-negligence claim, and thus even with significant liability payments, it was far cheaper to keep the current system requiring proof of liability. Subsequent studies in other states in the 1980s also showed that fewer than 10 percent of all potential cases of negligent care causing injury or death ever resulted in a medical negligence claim. Even if only half of those "missing cases" reach an attorney, there is a need for many more attorneys to pursue these cases on behalf of the victims of medical negligence.

While we can all agree that MICRA and its effects on compensation for the injured victims of medical negligence is grossly unfair, attorneys who refuse to take medical-negligence cases because of the limitation on non-economic damages do not help either those victims or society in general. Attorneys who refuse to take medical-negligence cases because of the limitation on attorney fees make the legal profession look even worse in the eyes of the public.

While efforts are on-going in both the courts and the Legislature to change the draconian effects of Civil Code section 3333.2, the increase in the number of victims of medical negligence and the increasing severity of long-term injuries require that all attorneys be able to correctly identify those cases that have merit. If those cases are correctly pursued, such victims of medical negligence will at least be provided some measure of compensation for their injuries and long-term suffering.

**This is an excerpt from an article written by Dr. Bruce Fagel, which originally appeared in the March 2011 issue of The Advocate Magazine.