Articles Posted in Medical Malpractice

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Opened First Aid Kit

Opened First Aid Kit

Does the failure to maintain a patient’s privacy ever rise to the level of medical negligence? According to a recent article from NPR, disclosing a patient’s health history under certain circumstances may in fact be grounds for a medical malpractice claim. What do you need to know about your privacy rights as a patient? When might a physician’s violation of those privacy rights lead to a successful lawsuit?

Breaches of Patient Safety May Amount to Medical Malpractice

Depending on the state you live in, courts may be more or less willing to consider a breach of privacy in relation to a medical negligence claim. Although California has not yet provided such a ruling, that fact alone does not mean that patients in our state should feel as though they do not have certain rights to privacy that patients in other states maintain.

For example, just this past summer, a patient filed a claim against UCLA and the Regents of the University of California due to a breach of privacy, according to the NPR report. What harm had the patient suffered? She argued that “a romantic rival accessed and shared her medical records.” The NPR article noted that “the rival was a temporary worker in the hospital of a private practice physician affiliated with UCLA’s Santa Monica Office,” and the “doctor acknowledged improperly sharing his password.” The jury in Los Angeles did not find in favor of the patient, but she had already settled out of court with the physician. Subsequent claims in California could ultimately turn out differently, with a jury awarding damages to an injured plaintiff.

Unlike the California court decision, courts in Indiana have been particularly “receptive to such arguments” about patient privacy. Patient advocates contend that more states should behave like Indiana, emphasizing to patients that their privacy rights are important and that healthcare providers will be held liable if they breach those privacy rights.

According to one advocate, “privacy protections should be the same regardless of what state you’re in.” Indeed, he underscored, “there is something wrong with an employer providing the means, providing the access, and providing the tools by which an employee can commit this crime and then being able to hold up their hands and say, ‘It’s not our fault.’ Should federal laws come into play? Or would a larger look to federal protections undercut state laws concerning medical malpractice?

Large-Scale Medical History Breaches

Some patient safety advocates argue that medical data breaches are nationwide issues that can involves hundreds—or even thousands—of patients. The federal Office for Civil Rights has looked into large-scale breaches of medical data already. Under current law, healthcare providers are required to notify the Office for Civil Rights “within 60 days of breaches affecting at least 500 people.” In addition, healthcare providers are required to “share details with the media and contact those potentially affected.” Thus far, the Office for Civil Rights has looked into cases even when there has been no clear “demonstrable real-world harm” to the patient. In the last six year, the office has gotten information concerning approximately 1,400 large-scale data breaches.

What happens when smaller patient data breaches impact individual plaintiffs? It may be possible for patients who have suffered breaches of confidentiality to file medical malpractice claims. You should speak with an experienced San Diego medical negligence lawyer about your case. Contact the Walton Law Firm today to learn more about how we can help.

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Preventable Pediatric Medical Errors
Patients at Risk of Injury in Smaller Military Hospitals

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When you take your child to see the doctor, do you worry about preventable medical errors? Most parents aren’t immediately concerned about the risks of surgical mistakes when their children go into the hospital for a routine surgery. Yet a recent article in MedPage Today indicated that pediatric medical errors happen much more often than most of us assume, and “nearly half” of them are preventable.234461207_9f28bf606f

Tool Developed to Prevent Pediatric Medical Mistakes

A pilot study developed a tool aimed at preventing medical errors in pediatric patients. The study recently determined that, when it comes to pediatric inpatients, “nearly half of the harms in patient charts were preventable.” The study looked at 600 different pediatric medical charts. Of those, 240 charts—or 45 percent of those in the study—had recognizable harms that researchers determined to be “potentially or definitely preventable,” according to one of the researchers. The study has been published in Pediatrics.

The authors of the study, including David C. Stockwell, the medical director of the Pediatric Intensive Care Unit at Children’s National Medical Center in Washington, developed the Pediatric All-Cause Harm Measurement Tool (PACHMT) in order to determine the causes of pediatric medical errors and whether they’re preventable. Specifically, the tool detects “triggers,” which the researchers define as “a medical record based ‘hint’ that ‘triggers’ the search of the medical record to determine whether an adverse event might have occurred.” In other words, the PACHMT allows researchers to search pediatric inpatients’ medical records to determine whether a medical mistake might have taken place.

The PACHMT is more predictive of some types of injuries than others. To be sure, the positive predictive value depends largely upon the trigger. For instance, preventable infections that occurred in the hospital had the highest predictive value at nearly 86 percent. Oppositely, the positive predictive value of elevated pain was only about 7 percent.

Types of Preventable Pediatric Injuries

When the authors of the study reported on preventable pediatric injuries, what were the most common harms they identified? The following represent some of the most common preventable injuries experienced by young patients:

  • Intravenous catheter infiltrations or burns;
  • Respiratory distress;
  • Constipation;
  • Pain; and
  • Surgical complications.

The harms occurred in patients with hospital stays between 24 hours and 6 months, with a median stay of 4 days. The study data looked almost equally at male and female patients, whose median age was 4 years old.

Currently, the PACHMT isn’t perfect, as its developers have noted. And the study also had limitations, with a “relatively small sample size and the lack of two physician reviewers.” However, their study emphasizes how trigger tools, such as the PACHMT, can “lead to a better understanding of the epidemiology of harm in hospitalized children, as well as allow tracking of change with patient-safety-focused interventions.”

While some medical errors don’t result in serious harms, many medical mistakes lead to severe and even fatal injuries. If you or someone you love recently sustained injuries because of a medical error, you should contact a dedicated San Diego medical malpractice attorney. You may be eligible for financial compensation.

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Patients at Risk of Injury in Smaller Military Hospitals

Medical Error Prevention and Medical Malpractice Legislation

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Many Californians are wondering about the outcome of a ballot initiative to raise the damages cap in medical malpractice claims. If the proposed legislation goes through, California residents who sustain injuries because of medical negligence will be eligible to obtain up to $1.1 million in certain compensatory damages, as opposed to the current cap at $250,000. But what types of medical errors usually result in medical malpractice lawsuits?

Small and Underused Militarfile000850100179y Hospitals

According to a recent article in the New York Times, military hospitals that care for about 1.35 million active-duty service members and their families show “signals of failing in a system” of care.  What is wrong with these hospitals? Investigators for the New York Times identified two major issues.

The first issue was size. The hospitals are so small, and so few patients use them, that “it compromises the ability of doctors and nurses to capably diagnose and treat serious illnesses.”

The second issue was underuse. About two-thirds of military hospitals served only 30 patients or fewer per day in 2013, and many served 10 or fewer patients each day. To put this number in perspective, the highest number of inpatients is still “less than a third as many as the typical civilian hospital. That means about half the beds in these military hospitals remain vacant on a daily basis.

According to Dr. Lucian L. Leape, a patient safety expert at the Harvard School of Public Health, these hospitals “should be outlawed.” The Pentagon is planning to scale back on the military hospital system, thus encouraging patients who would otherwise enter the doors for surgery or treatment for a serious illness to visit a civilian hospital instead. What will happen to the hospitals? Many will be converted into outpatient clinics or birthing centers.

Medical Errors and High Rates of Patient Injury

The New York Times report emphasizes the serious problems these hospitals experience in relation to maternity patients and birth injuries or birth defects. The following birth injuries occur with much more frequently at military hospitals:

  • Trauma to the infant during birth: 95 percent higher risk at a military hospital than a civilian hospital;
  • Postpartum hemorrhage: 43 percent higher risk, on average, at a military hospital;
  • Shoulder dystocia and resulting harm in the infant: 40 percent high risk on average;
  • Maternal trauma with instruments: 22 percent higher risk at a military hospital than at a civilian hospital.

Birth-related injuries are not the only ones that patients are at risk for at military hospitals. The article also demonstrates higher rates of injury during even routine surgeries, such one to correct a hiatal hernia. Although more than 25,000 Americans undergo this surgery each year, one patient at military hospitals lost her stomach as a result of a medical error. Another example involves the six-year-old son of a Navy officer who suffered fatal injuries after receiving improper treatment at a California military hospital.

Some commentators suggest these high rates of injury are caused by a lack of training for young doctors at these facilities. Other suggest that limited financial resources are to blame.

If you or a loved one suffered personal injuries because of a medical professional’s negligence, it is important to talk with an experienced San Diego medical malpractice lawyer. Given the recent focus on raising the damages cap, you may be eligible to receive substantial compensation for your injuries.

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Medical Error Prevention and Medical Malpractice Legislation

San Diego Medical Malpractice and NFL Drug Abuse Claims

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A ballot initiative over penBarbara_Boxerding medical malpractice legislation in California, called “one of the nation’s most expensive ballot campaigns” by the Washington Post, received additional support via a television advertisement from Senator Barbara Boxer.  A recent article in the Los Angeles Times explains that Boxer “emerged as a forceful spokeswoman for an initiative to raise some medical malpractice awards in the state.”

Proposition 46, Damage Caps, and Medical Malpractice Legislation

The ballot measure, known as Proposition 46, “would increase the limit on certain medical malpractice damages from $250,000 to approximately $1.1 million.”  Since 1975, non-economic damages have been capped at $250,000.  Unlike economic damages, which typically compensate a victim for hospital bills, medical visits and treatments, and so forth, non-economic damages compensate victims for injuries such as loss of enjoyment of life, disfigurement, and pain and suffering. Also unlike economic damages, non-economic damages cannot be measured in a fixed dollar amount, and can therefore vary widely from case to case.

According to Senator Boxer, putting a higher cap on medical malpractice damages would help to “prevent medical errors in the first place because there is more at stake.”  In order to prevent medical errors, Proposition 46 would require additional safety practices.  Specifically, it would “require hospitals to randomly test physicians for drugs,” and it also would “[r]equire doctors to check a statewide database of prescriptions before prescribing certain drugs in an effort to curb abuse of those medications.”

Advertising in a Costly Campaign

In the recent advertisement narrated by Boxer, viewers are shown images of children who died because of “preventable medical errors.”  The advertisement does not specifically refer to raising the medical malpractice damages cap, but instead emphasizes that changes to the current medical malpractice law would “hold the medical industry accountable for mistakes.”

Currently, trial attorneys who support Proposition 46, along with consumer and healthcare advocates, have raised approximately $5 million for the campaign.  Opponents of the ballot initiative, who released a television ad in late August, include doctors and malpractice insurers, have raised more than $54 million.  While the opponents are better funded, a spokesperson for a consumer advocacy group emphasized that those in favor of the initiative “will be competitive on television.”

Medical malpractice awards are a very hot topic in California.  News of the ballot initiative to raise the cap for certain compensatory damages even made national news, and California residents eagerly await the November vote.  If you or a loved one has been injured because of medical malpractice, contact an experienced San Diego medical malpractice attorney to discuss your case.

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San Diego Medical Malpractice and NFL Drug Abuse Claims

Medical Malpractice Initiative Will Appear on November Ballot

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Most recent news about the NFL and professional football has concerned the prevalence of traumatic brain injury among those who play contact sports.  However, a recent article in the Insurance Journal reported that a San Diego team doctor may be liable for medical malpractice.  What’s the link between medical malpractice and football?  In short, a number of players have come forward with allegations concerning drug abuse.


Narcotics Prescriptions and Medical Negligence in Football?

Back in May, approximately 500 former NFL players filed a lawsuit in the U.S. District Court in northern California alleging that physicians affiliated with the pro sports league “illegally dispensed powerful narcotics and other drugs to keep players on the field without regard for their long-term health.” The initial complaint was amended shortly after its original filing date to add another 250 players to the lawsuit. Now, 750 plaintiffs are involved in the case against the NFL.

Only a handful of the players are identified by name, however, including Marcellus Wiley, who played for Buffalo, Dallas, Jacksonville, and San Diego during his time in the league. Some of the other named players include Richard Dent and Jim McMahon. McMahon, as many remember, was also involved in the concussion class-action case that was settled for $756 million last year. The players involved in the current claim are seeking class-action certification.

What are the details of the new lawsuit? First, it spans a number of decades, covering the years between 1968 and 2008. During that forty-year period, the former players argue that “team physicians and trainers across the NFL routinely—and often illegally—provided powerful narcotics and other controlled substances on game days to mask the pain.”

Some of the prescribed painkillers include Percodan, Percocet, and Vicodin. But more than just painkillers are involved. The former players also contend that powerful anti-inflammatories like Toradol, and sleep aids like Ambien, were “handed out like candy at Halloween” and “often combined in cocktails,” according to the article in the Insurance Journal. Indeed, the lead attorney in the lawsuit indicated that some of the teams that have been implicated even “filled out prescriptions in players’ names without their knowledge or consent.”

Long-Term Health Damage from San Diego Physician’s Decisions

The alleged effects of narcotic use in the NFL have included long-term health damage, according to the players involved in the lawsuit. They’ve reported a “range of debilitating effects,” which include chronic muscle pain, bone ailments, permanent nerve damage, and organ damage as a result of addiction to some of the drugs named.

And according to Wiley, who suffered partial renal failure earlier this year, the then-San Diego team doctor David Chao regularly supplied him with painkiller injections over an entire season. Chao allegedly gave Wiley the “multiple injections” to help him cope with what he had diagnosed as a “severe groin sprain.” However, an independent physician diagnosed Wiley with “a torn abdominal wall” that actually “required surgery.” The Medical Board of California has since placed Chao on probation, and his license was revoked. And back in 2012, a jury found Chao liable for another patient’s injuries.

The players will need to prove a “cause and effect” relationship between the painkillers and their current injuries. Additionally, they’ll need to show that their health problems are more pronounced than those of other people their age who haven’t been exposed to the same levels of painkiller medications.

Medical malpractice is a serious issue. Indeed, right now many patient advocates in California are working to raise the cap on the damages available to medical malpractice victims in our state. If you have sustained injuries because of medical negligence, you should seek legal counsel. Contact a San Diego medical malpractice attorney at the Walton Law Firm to learn more about how we can help with your case.

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Medical Malpractice Initiative Will Appear on November Ballot

$9 Million UC Davis Medical Malpractice Settlement

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Over the past year, consumer advocates across the state of California have been thinking about the current cap on medical malpractice damages and the possibility for raising that cap.  According to an article in Reuters, just last week advocates in favor of raising the medical malpractice cap indicated that “they had gathered enough signatures to place an initiative on the November ballot.”  The ballot initiative was a response to thus-far ineffective legislation attempts to raise the damages cap.

The ballot initiative is likely to be controversial, and until quite recently it wasn’t clear whether California residents would have to vote on raising the decades-old medical malpractice cap, or whether the state legislature would have taken care of this without a costly election fight.  The cap should have been raised, and the Walton Law Firm strongly supports the effort to raise it.

For San Diego residents who have sustained injuries because of medical negligence, the outcome of the ballot initiative will be very important.  In the meantime, if you have suffered a personal injury due to medical malpractice, it’s important to seek advice from an experienced San Diego medical malpractice lawyer.  At the Walton Law Firm, we’re paying close attention to the ballot initiative, and we can talk with you about your case today.

Recap: California Medical Malpractice Damages Cap

As you might recall, California currently has a cap at $250,000 for damages connected to pain and suffering.  In other words, a jury cannot award more than that amount for pain and suffering sustained because of medical malpractice.  Many Californians don’t believe this cap is sufficient.  In particular, Consumer Watchdog, a Santa Monica-based organization, has been at the center of the current ballot initiative, which is also backed by trial lawyers, according to the article in Reuters.

What would the ballot initiative achieve?  The advocates at Consumer Watchdog are hoping to raise the damages cap to $1.1 million—a number that “would more than quadruple the amount of money a patient could be awarded for pain and suffering in a malpractice case.”  In short, raising the damages cap is patient-friendly goal.  The backers of the initiative have collected 840,000 signatures, which is far more than the 505,000 signatures required under California law to “get it on the ballot.”

Legislative Compromise Failures Leads to Ballot Initiative

In February, state senate Democratic leader Darrell Steinberg introduced a bill concerning the medical malpractice damages cap that would have “avoided a costly and ugly battle between doctors and lawyers over the ballot initiative,” Reuters reported.  The compromise proposed by Steinberg would have raised the damages limit to $500,000 under California’s Medical Injury Compensation Reform Act (MICRA).  According to Steinberg, the $500,000 compromise would still be “far below the rate of inflation since MICRA became law 39 years ago.”

While representatives for both lawyers and doctors seemed like they “were close to agreeing on the deal proposed by Steinberg,” it turned out that “talks fell apart,” forcing Consumer Watchdog’s hand with the ballot initiative.  Without a legislative compromise, the medical malpractice cap is going to go to the voters.  Consumer Watchdog is joined by Consumer Attorneys of California.

According to an article in the Washington Post, “the most expensive race of 2014 could be this California ballot measure.”  Indeed, the article described the ballot initiative as one that “pits doctors against trial lawyers in a high-stakes political death match.”

It will be important to follow the ballot initiative closely, as it could have serious implications for medical malpractice lawsuits throughout our state.  If you have sustained because of medical negligence, contact us today to learn more about filing a claim for financial compensation.

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$9 Million UC Davis Medical Malpractice Settlement

More News About the Medical Malpractice Cap

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After a serious accident, injury victims often are transported to a local hospital. However, a personal injury can become significantly worse if it’s not treated properly and quickly. A recent article in the Los Angeles Times suggests that speedy injury treatment may be a problem for some California hospitals. Specifically, a report released by the American College of Emergency Physicians indicated that California earns a failing grade when it comes to “access to speedy treatment,” the article stated. Indeed, our state “has the lowest number of hospital emergency rooms per capita in the nation.” Could this overcrowding lead to medical negligence or medical malpractice claims?


The report used data from the U.S. Centers for Disease Control and Prevention (CDC) and the Centers for Medicare and Medicaid Services to make its findings. Given the state of emergency room overcrowding in California, the advocacy group described the lacking access to injury care as a “critical problem.”

What Do We Mean When We Talk About Hospital Overcrowding?
In general, Californians who visit emergency rooms don’t get quick care, and many accident victims aren’t treated in a timely manner so as to prevent further injury. According to the Los Angeles Times article, people who are admitted to California hospitals after arriving at emergency rooms had to wait, on average, more than 5.5 hours before being seen by a medical professional.

In addition, there aren’t enough beds when people are admitted to the hospital. The report specifically indicated that there’s a “shortage of inpatient and psychiatric beds in hospitals—another squeeze on emergency departments, which often ‘board’ incoming patients until they can be rerouted to the correct hospital department,” which further limits the capacities for emergency room care.

California’s History of Poor Access to Care

This isn’t the first time California has been cited for its struggling access to patient care. In fact, a similar report was conducted back in 2009, when California also earned a failing grade for access to care. According to Dr. Alexander Rosenau, the president of the American College of Emergency Physicians, some of the emergency-room overcrowding may be the result of uninsured accident victims seeking care in the ER.

However, Rosenau worries that policymakers will begin to look to emergency room visits in order to gauge the success of the Affordable Care Act, since many Americans will now have access to primary care through new insurance plans. Yet, in short, we can’t assume that the Affordable Care Act will reduce the need for closer scrutiny surrounding California’s overcrowded hospitals. Indeed, Rosenau emphasized, statistics from the CDC show that “the vast majority of people who come into emergency departments need urgent treatment.” As such, he hopes that policymakers will try to increase quicker access to emergency medicine rather than focus on opening up more primary care options.

When an accident victim suffers serious injuries, he or she often will require speedy emergency care. If you have been injured but haven’t received proper or timely treatment, you may be eligible to file a claim for compensation. Contact an experienced medical malpractice attorney at the Walton Law Firm today to discuss your case.

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$9 Million UC Davis Medical Malpractice Settlement
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A recent out-of-court medical malpractice settlement in Sacramento awarded the parents of Leah Gumb $9 million. Nearly two years ago, Leah Gumb suffered permanent brain damage after she was born at the UC Davis Medical Center, according to KTXL Sacramento. This case concerned a C-section that doctors failed to perform after Leah’s heart rate dropped. As a result, the infant requires “24-hour nursing care for the rest of her life,” reported CBS 13 Sacramento.


Have you been the victim of medical malpractice? It’s important to contact an experienced medical malpractice lawyer as soon as possible. California law has a statute of limitations on medical malpractice claims, which affects the time period in which you’re permitted to file a lawsuit. At the Walton Law Firm, we have years of experience handling medical negligence cases and can discuss your claim with you today.

What is Medical Malpractice?

In California, medical malpractice refers to a situation where a professional health care provider acts negligently. Many different kinds of health care providers can be held liable for medical negligence, including physicians, nurses, hospital and office staff, and dentists. Whenever one of these healthcare providers doesn’t abide by a certain standard of care, they can be guilty of medical malpractice.

Keep in mind, surgeries and medical procedures don’t always go as planned—that doesn’t necessarily mean that you’re dealing with a medical negligence case. Only an experienced California medical malpractice lawyer can assess the details of your case and make recommendations for moving forward with your claim.

Obstetrics and Medical Negligence in the Sacramento Case
What happened in the Leah Gumb case? Leah’s mother, Jenny Kaminer, signed a waiver form to deliver her baby via a C-section. While she was in labor, Leah’s heart rate “would drop, and there wasn’t enough blood from her mother’s placenta to give her oxygen.” Kaminer was taken into the operating room, but while she was in there, she was surprised to learn that her doctors weren’t planning to perform a C-section.

Referring to Leah’s drop in heart rate, Kaminer explained, “I was told, ‘if this happens again, you need a C-section,’ which is why I signed the consent without any hesitation. And I still don’t know to this day when doctors made the decision not to perform the C-section.”

Because doctors didn’t perform the C-section, Leah suffered permanent brain damage. Kaminer recalled, “they took her right away to resuscitate her, and then she was put on a cooling blanket.” According to Kaminer, Leah “was blue and lifeless. Didn’t cry, didn’t move. It was obvious to us that something was catastrophically wrong with her.” Leah stayed in the UC Davis Medical Center for 30 days, and even after being released, she remained on a feeding tube until very recently.

The parents filed a lawsuit, seeking $15 million in damages to pay for Leah’s care. They decided to settle for $9 million, which will provide them with “the money they need to give Leah the best chance at a normal life as possible.” After the settlement had been decided, Kaminer described it as “very welcome in the sense that it relieves out financial burden . . . it allows us to get her as much therapy as she needs without worrying about the cost.”

Medical malpractice can have a significant impact on the life of the victim and the victim’s family. If you or a loved one have been injured by medical negligence, you may be eligible for compensation. Contact a California medical negligence lawyer today to learn more.

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More News About the Medical Malpractice Cap

Relaxing the Cap on Medical Malpractice Awards in California

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Back in August, we told you about a California ballot initiative that is looking to raise the cap for medical malpractice awards. Many commentators believe the cap should be relaxed, permitting victims of medical malpractice to collect more than a mere $250,000. The Medical Injury Compensation Reform Act (MICRA) put this limit into place back in 1975.

However, the California Medical Association vehemently opposes a raise to the cap. According to an article in Sacramento’s local KABC-7, some experts believe the doctors may win this fight. Since the legislative session ends this month, it’s a good time to return to this issue. Will lawmakers create a solution to the debate between commentators in the medical and legal arenas before the session ends? Or will voters get to choose?

What’s the Ballot Initiative, Again?

Just to remind you about the key players involved in the proposed alterations to MICRA: Bob Pack, whose two children were killed by a woman who was driving while impaired by medications that her doctor carelessly prescribed. At the time of the incident, Pack was only eligible for $250,000 worth of compensation for each of his children’s lives due to the medical malpractice cap.


Does the ballot initiative propose anything besides relaxing the cap on medical malpractice damages? The Pack ballot measure, if it passes, would “require random drug testing of doctors,” and it would also “mandate the medical profession use a state database that keeps track of prescriptions,” according to KABC-7. The primary part of the initiative, however, is to raise the ceiling on medical malpractice damages to $1.1 million and to permit that number to change over the years in order to adjust for inflation.

The president of the California Medical Association, Dr. Paul Phinney, recently explained why he’s opposed to the ballot initiative. In short, he believes it will drive up costs unnecessarily on both the medical and legal ends of the spectrum. Phinney said, “it will increase meritless lawsuits, which will increase lawyer fees, increase healthcare costs, decrease access to care and won’t do anything to improve the quality of medical care.” Some commentators like Phinney have also expressed concerns about the very expensive campaign that the ballot initiative is likely to produce.

So, who’s right? A recent news story in ABC10 shows one victim’s side in the fight to relax the medical malpractice damages cap.

Chula Vista Family Fights for Medical Malpractice Damages

As lawmakers and medical professionals contend with the large-reaching implications of the ballot initiative, a report from ABC10 depicts the personal and individual consequences of the current medical malpractice damage cap.

In Chula Vista, one family has been suffering the consequences of the $250,000 cap since 1994. In the early 1990s, medical professionals misdiagnosed Kathy Olsen’s 2-year-old son Steven with meningitis. In fact, Steven had a dangerous infection that led to a brain abscess. Medical professionals missed the serious brain infection attacking Steven, and he ended up suffering severe brain damage as a result. After doctors discovered that Steven had a brain abscess following a CAT scan, he underwent surgery but he “could not see, eat, walk or even speak” after the surgery.

Olsen filed a lawsuit in 1994, and a jury awarded her family $7.1 million. However, the California MICRA capped her damages at only $250,000. Olsen recently spoke out about the ballot initiative, making clear that she and her family hope the damages cap is relaxed. For Olsen, even $1.1 million isn’t enough, “but at least it will be a little bit more,” she told ABC10.

Right now, Californians will have to wait and see what happens with the ballot initiative. But in the meantime, if you or a loved one have been injured because of medical malpractice, you could be eligible for compensation. Contact the experienced medical malpractice attorneys at the Walton Law Firm today to discuss your case.

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Relaxing the Cap on Medical Malpractice Awards in California

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In 1975, the California Legislature capped the damages that victims of medical malpractice could seek for pain and suffering. Since then, about half of the states in the U.S. have done the same, according to an article in the Los Angeles Times. Now, a new ballot initiative in California seeks to relax that cap.

Nearly forty years after the Medical Injury Compensation Reform Act capped noneconomic damages in our state to $250,000 for medical malpractice, “trial lawyers and consumer groups have unveiled a ballot initiative that would relax the cap considerably,” said the Los Angeles Times. Indeed, if voters approve of the new measure, the “allowable amount for noneconomic damage payouts for victims of medical malpractice would quadruple.”

For advocates of tort reform, limiting noneconomic damages has been a point of much significance. Simply put, noneconomic damages, such as those for pain and suffering, provide compensation for injuries that aren’t directly related to medical bills or lost income, for example. So why the ballot measure, and why now?

Details of the Ballot Measure

The Sacramento Bee reported on the ballot initiative, filed by Robert S. Pack. His two children were killed in a car accident by a driver who was under the influence of prescription drugs “given to him by irresponsible doctors.” If it’s approved, the ballot measure will raise the cap for noneconomic damages to about $1.1 million and will allow that number to continue to rise with inflation.

While Consumer Attorneys of California hasn’t decided whether it will formally endorse this ballot initiative, the ballot initiative is expected to “encounter fierce opposition from the medical community,” according to the Sacramento Bee.


Problems with the Current Cap

According to commentators, one of the primary problems with the $250,000 cap is that it originated in 1975 and has never been relaxed to account for inflation.

In addition, the Los Angeles Times article indicated that the effects of the damage cap “are not felt evenly.” What does this mean? For example, victims of medical malpractice in our state can only receive up to $250,000 in damages, while people who sue for other harms don’t have those damage caps imposed.

Moreover, when someone is very seriously injured by medical malpractice, the $250,000 amount in damages just isn’t sufficient. What about someone who suffers from a severe brain injury or has been paralyzed? Those victims can’t recover any more for loss of enjoyment of life than victims of less serious injuries who are actually likely to recover in their lifetimes.

There are a number of other problems, as well. First, the current cap tends to disproportionately affect women. Juries tend to award women 59% of the men’s median amount since the cap has been imposed. The award cap can also hinder a victim’s ability to find a lawyer to take her case. Since many lawyers who handle tort litigation, including medical malpractice claims, work on a contingency basis, they’re only paid a portion of what they’re able to recover for the client. With a $250,000 cap on noneconomic damages, a medical malpractice lawyer isn’t always likely to find a medical malpractice case profitable. Without an experienced medical malpractice attorney, a client is unlikely to recover damages for her injuries.

Other commentators suggest that malpractice caps were instituted to reduce healthcare costs, but studies tend to show that caps only cut healthcare costs by a trivial amount—about 0.5%, according to the Los Angeles Times.

Have you been injured as a result of medical malpractice? It’s important to speak to an experienced attorney as soon as possible. Our state has a statute of limitations on medical malpractice claims that requires you to file your case within a specific period of time. The dedicated attorneys at the Walton Law Firm can speak to you about your case today.

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