Howard Kapp, Esq.

How to evaluate medical malpractice cases in California

Medical malpractice is, largely, a subspecies of the same tort of negligence taught to every first year law student. Flowers vs. Torrance Memorial Medical Center (1994) 8 Cal.4th 992. Despite the legal similarities, medical malpractice is a distinct legal sub-specialty, requiring specialized, and frequently esoteric, experience and knowledge regarding this interplay of law and medicine. With a little guidance, most experienced personal injury lawyers can, at least, screen out the worst cases and recognize those cases that have potential to be referred to a qualified medical malpractice lawyer. Yet, it has been our experience that many otherwise qualified and justifiably self-confident personal injury lawyers are intimidated by any involvement in a potential medical malpractice case.

We propose here a screening system which, in our experience, generates a high incidence of correct screening of these unusual cases, usually within 5 or 10 minutes of the initial interview with the potential client. Moreover, this system does not require any esoteric knowledge of medicine or this area of legal practice, but, rather, seeks to direct the non-specialist to determine the key information required by the medical malpractice specialist.

Before we turn to the specifics, it is useful to note some unusual aspects to the initial contact with a prospective medical malpractice client. The prospective medical malpractice client is, in our experience, commonly very different from that of the non-malpractice client. Generally — and this is counter-intuitive due to the generally lower standard of care provided to the poor and uninsured — most medical malpractice clients appear to be, presumably by self-selection, much more sophisticated than the general population.

Moreover, the screener should never be surprised when the prospective client's first comment is an apology for even calling a lawyer about suing a health care provider. It has been our experience that, apparently due to years of anti-lawyer propaganda, almost all such clients feel the need to apologize for even considering such a claim. It may be useful to assure the prospective client that this guilt, or shame, is misdirected, as medical malpractice is unquestionably a tremendous, and long recognized, public health problem which is not effectively regulated by the Medical Board of California or any other responsible agency. The only truly effective deterrent to malpractice is the threat of medical malpractice litigation.

Finally, unlike non-malpractice cases, the client is necessarily much more involved in the pre-acceptance evaluation process, specifically in gathering relevant medical records and providing a much more detailed history. This is, in our experience, rarely a client management problem since such these clients are more sophisticated, more motivated, more grateful that their case is being evaluated (apparently because they recognize that medical malpractice is a specialty), and intuitively understand that this is not a garden-variety auto accident case.

Any medical malpractice case requires answers to the following questions, phrased here in plain English, usually in this order:

1. Is the action timely?
2. Why precisely was the plaintiff at the doctor's office or undergoing the questioned procedure?
3. Tell me something about the asserted victim before this problem began.
4. What type of doctor was involved?
5. What does the plaintiff think that the defendant did wrong? Why?
6. How did the plaintiff's life change as a result of the asserted malpractice?
7. Generally, what type of economic and non-economic damages will be claimed?

Question 1: "When Did The Injury-Causing Event Occur?"

This is, obviously, a statute of limitations question. If the occurrence happened within 1 year (or 6 months in the case of governmental defendants), then this is not an issue. Please note that, unlike in more common tort actions (e.g., auto or trip-and-fall accidents), "delayed discovery" is common in medical malpractice cases.

Timeliness: Suspicion Rule

If the occurrence happened between 1 and 3 years ago, ask: "When did you first suspect that the defendant did something wrong?" (The 1 year statute of limitations is triggered by "suspicion".) Always determine "the event" that triggered this late suspicion as it can be very difficult to prove that suspicion suddenly occurred more than one year after the event unless there was some trigger event, such as a new finding by another doctor. If the suspicion-triggering event is fairly recent and otherwise poorly documented, the patient should be encouraged to establish that, in fact, the suspicion was of recent origin. For example, if the suspicion was triggered by the client's perusal of a medical web site, the client should be instructed to print out a hard copy of the page.

If you determine that the claim is beyond the 1 year statute of limitations, stop: the case is time-barred.

Timeliness: Cases Between 1 and 3 Years Since the Malpractice.

Due to the factual complexity of the class of cases, it is usually best to refer these cases directly to specialist counsel. See Code of Civil Procedure §340.5.

Timeliness: Minors.

Normally, a minor can wait until his or her 19th birthday to file a personal injury case. This is not true in medical malpractice cases. There are special rules for birth injuries (Code of Civil Procedure §340.4) and for minors under 6 years of age. Code of Civil Procedure §340.5.

Question 2: "Why Was the Doctor Treating You?"

This question is perhaps the easiest question to ask but, in our experience, the one that is almost never asked by non-medical malpractice lawyers. Unlike more prosaic personal injury cases, almost all medical malpractice plaintiffs have some highly relevant prior medical history. Indeed, the very reason that the patient was exposed to medical malpractice was that he or she presented to a doctor. The question is why.

Without getting this basic information, there is no way to determine whether any of the elements of the tort are present. Without this information, a procedure done by the defendant may appear, at first blush, to be outrageous or even barbaric. Just remember: doctors treat different conditions differently. Thus, it may be malpractice to treat an ingrown toenail with chemotherapy, but such treatment would be appropriate, indeed perhaps mandatory, for the treatment of cancer. Doctors don't make decisions in a vacuum; you shouldn't either!

Question No. 3: Describe the Victim.

While it is always important to "know your client" in screening any personal injury case, it is particularly so in malpractice cases. At the very least, the screener should know:

a. The patient's age and gender,
b. The patient's relevant medical history (including any disabling, systemic or other conditions),
c. The patient's employment and/or pre-injury level of functioning, and
d. In death cases, the heirs.

Again, it is not necessary that the screener actually understand these nuances, only that the proper screening information is available to the decision-maker, the medical malpractice specialist.

Question No. 4: What Type of Doctor Was Involved?

It is almost always useful to know the specialty of the involved doctor. Although this is certainly not conclusive (see BAJI 6.04), a physician who undertakes care outside of his or her recognized specialty raises a red flag and different legal and factual issues. It is generally useful to ask the potential client if he or she has a copy of the doctor's business card or letterhead, where, commonly most doctors will provide their area of specialty and reference any board certification.

Question No. 5: "What Do You Think That The Doctor Did Wrong?"

No one, except in the most obvious cases, actually expects that a lay victim will be able to fully and correctly articulate why he or she suspects malpractice. Patients, obviously, are not doctors. Nonetheless, there is a reason why the alleged victim has taken the time to call a lawyer for advice on a potential medical negligence matter. It is your job to determine why.

Some potential plaintiffs have spoken with a qualified health care provider who had told, or at least intimated, to the prospective client that something was amiss. This can be very helpful in pointing the medical malpractice lawyer to potential witnesses. Ask the patient if the criticizing health care provider would be willing to discuss the matter, either "on" or "off" the record.

Other potential plaintiffs feel wronged because they had an unexpected bad outcome. Of course, a mere "bad result" does not necessary equate to malpractice; nonetheless, it may. Generally, it is important to remember that the listing, or non-listing, of a specific bad outcome on the consent form does not necessarily relate to liability. Nonetheless, it is generally helpful to determine if there is an objective basis for the patient's belief that he or she was a victim of bad medicine.

Some potential plaintiffs — and these are fortunately rare in our experience — are plainly motivated by the doctor's poor bedside manner or because they are trying to avoid legitimate medical bills. While the potential client's motivation itself is not determinative, it is helpful to know this in evaluating the case.

Question No. 6: "How Did this Wrongdoing Change Your Life?"

This surprisingly simple question is the one, in our experience, that most non-medical malpractice lawyers don't ask. No competent medical malpractice lawyer is going to accept a case where the damages are "too small". While the threshold amount of damages varies from medical malpractice specialist to specialist, it is useful, as a preliminary matter, to obtain enough information to allow the specialist to decide if the case is economically viable. Many marginal cases are rejected even where malpractice is assumed ad arguendo.

Any experienced practitioner will avoid "could have been" or "no harm / no foul" cases. These cases typically involve obvious, or even outrageous, liability facts where, nonetheless, the patient's condition resolved relatively promptly without residual injuries. Juries do not award damages for Could-Have-Beens.

Frequently, the initial intake interview will reveal that the patient received the same requisite level of care, albeit in a delayed fashion, and was not substantively damaged by the delay. For example, an appendicitis patient may complain that a doctor missed that condition earlier; however, if the surgery and outcome is generally the same as would have done anyway, damages may be too small to justify an action. Indeed, there may no damage at all.

Question No. 7: Generally, what type of economic and non-economic damages will be claimed?

This is the same familiar question as in any personal injury case, with a twist. As is commonly known, MICRA limits general damages to $250,000. Civil Code §3333.2(b). Likewise, the collateral source rule does not apply to medical negligence cases. Civil Code §3333.1. This — especially when combined with an appreciation that many more medical malpractice will be fully litigated than non-malpractice injury cases — means that, in screening medical malpractice cases, a rudimentary understanding of the client's legally collectible economic consequences of injury — usually wage loss — is of more immediate interest than in a similar non-malpractice personal injury context. It is thus useful to make a quick preliminary inquiry into such additional damages.

Special Issue: "Premature" Claims

There is a large group of potential clients who contact counsel before the alleged malpractice-caused injury has stabilized. In such cases, it may be impossible to evaluate whether, as a practical (economic) matter the injuries justify a malpractice case. There are frequently distinct patterns to these types of cases.

For example, it is not uncommon for a patient to experience some unexpected numbness (or other manifestation of a nerve injury) post-operatively. That numbness may be very distressing to the patient; indeed, that numbness may the result of malpractice. Yet, fortunately, many nerve injuries will heal over a period of a few months. Such healed injuries may not economically support a malpractice case.

Likewise, the immediate post-operative period is, except in obvious or extreme cases, usually a bad time to take any definitive legal action: a patient can have a terrible post-operative period and yet have a wonderful recovery, and, of course, visa versa. In some cases it may take years to truly evaluate the presence or extent of injury.

Nonetheless, irrespective of the uncertainty of the ultimate outcome, it is imperative to remember, and protect, the statute of limitations: the 1 year statute is triggered, in part, by "manifestation" of the injury, even if that manifestation is deemed too insubstantial to justify the economic decision to proceed. This can be a legal malpractice trap: the manifestation determination is not the same as the lawyer's practical decision to proceed. In such cases, as in all statute of limitations situations, diligent counsel has no choice but to assume the earliest statute of limitations date.

In any event, in the normal "premature" case, the following should be done promptly:

1. The statute of limitations needs to determined and the prospective client informed of this deadline and how his or her future actions must accommodate this deadline. In some cases, enlightened self-protection may require that this determination be conveyed in writing to the prospective client.

2. The prospective client should be instructed, as in any potential case, to promptly gather the relevant medical records. Since this instruction can be intimidating to many such clients, this office, for example, provides the client with an in-house how-to-get-your-medical-records form. This form also has the useful incidental affect of providing counsel with an opportunity to provide the prospective client with your name and telephone number, thereby making a call-back more likely.

3. Since damages are already a question, the prospective client should be directed to gather any damage-related writings.

4. The client should be instructed to prepare a case- and client-appropriate account of events, both to act as a guide for counsel and to confirm matters while the memory is fresh. Of course, this writing should be addressed to counsel to preserve privilege.

5. The client needs to provided with specific information as to what you are looking for and a target date. Unless the screener is familiar with the medical, legal and practical requirements for the decision to be made, it may be useful to contact the medical malpractice specialist to get some direction on this.

Frequently, medical malpractice cases involve an asserted failure to timely treat. In these types of cases, it is often useful to determine the key contact dates or times during the initial screening telephone call. Even in the hands of the most inexperienced screener, the discussion will naturally lend itself to the proper time periods.

The relevant time periods in "failure to timely diagnose (or treat)" cases varies widely depending on the condition involved. For example, a delay in the diagnosis of most cancers for weeks, or even a few months, may make no difference in the patient's ultimate treatment or prognosis. Alternatively, a failure to timely treat Necrotizing Fasciitis (the so-called "Flesh Eating Virus") may turn on a matter of minutes or an hour or two. Appendicitis cases usually turn on hours, or even a day or two.

Special Issue: Elderly Patients

There are some gross misunderstandings about the unique situations involving the elderly. First, one should rarely assume that a patient does not have a case due to advanced age. Not only may some of these cases qualify as elder abuse (Welfare & Institutions Code §§ 15657 et seq.), but many of the so-called elderly may have been quite active before the acute onset of some treatable condition and had a reasonable expectation of years of general good health. Thus, some inquiry into the patient's prior level of daily activities is generally useful.

Many "elderly" people have a right to assume many more good years in the future. For example, a 70 year old white female, can expect to live another 15½ years according to the BAJI life expectancy table. Many active elderly people may legitimately have a much longer life expectancy than might be assumed.

Special Issue: Informed Consent

Informed consent cases are of unusual interest to legal academics; however, true, solid informed consent cases are extremely rare. In our experience, the value of this theory is usually wildly over-estimated by inexperienced counsel and the lay client.

In the informed consent world, "causation" requires, in addition to the usual factors, that the plaintiff establish that a reasonable person in the plaintiff's position would have not consented to the procedure if he or she had been fully informed. This is an objective "reasonable person" standard, although the plaintiff is entitled to testify on this point. Of course, a case built solely on a patient's purported "seller's remorse" after a failed procedure may not be convincing to a jury. The larger truth is that most jurors — i.e., the prototypical "reasonable patient" — will loyally follow their doctor's advice, even as to risky or dubious matters. (The only major exception is where the procedure was truly elective – e.g., cosmetic – and where there was a significant risk in the procedure.)

It may be fruitful to explore this issue somewhat; however, cases rarely turn solely on an informed consent issue. In any case, it is useful, if not vital, to obtain any consent forms signed by the patient. Frequently, even if that form is not helpful, informed consent forms can be useful in other contexts as well, e.g., to show that the defendant considered the bad outcome — which defense counsel now claims was an well-known risk of the procedure — so unusual that it was not even mentioned in the otherwise inclusive form.

Special Issue: Don't Rely Upon Your "Favorite Doctor"

One common mistake, in our experience, is for the non-medical malpractice lawyer to give undue consideration, or sometimes any consideration, to a favored doctor. Many times such doctors get it wrong. Your "Marcus Welby" is just not the best person to make these calls. Many, if not most, of the doctors in the general community have been the subject of intense and prolonged propaganda predisposing them to disfavor medical malpractice cases. Even honest physicians may be simply unable to appreciate or overcome this anti-litigation agenda.

Moreover, most physicians, even those experienced in the relevant medical field, have little understanding of what is involved a medical malpractice claim; many are frankly so limited in their practice that their opinions outside of that scope may be archaic or just plain mistaken. This, of course, can cut either way.

A recent example demonstrates this problem. The client, a 60ish woman with insulin-dependent diabetes, end-stage renal disease and a variety of other terminal diabetes-related conditions, presented to a clinic for an ingrown toenail, which can be, if not treated properly, a substantial problem for a diabetic. The toenail was treated, but no antibiotics were prescribed. Within days, the toe became infected and gangrene set in, ultimately resulting in the loss of the lower leg.

The local, and very experienced, "friendly internist" was appalled and enthusiastically recommended a malpractice action. We rejected the case, specifically on the grounds that, first, the patient probably would not survive long enough for us to obtain a judgment and, secondly, her diabetes was so bad that she was bound to lose the leg, or suffer similar injuries, soon, irrespective of the obvious malpractice. The referring attorney, who had decided to proceed despite our advice, called within 2 weeks to notify us that the unfortunate lady had, within those 2 weeks, lost her other leg, without any hint of malpractice, and, accordingly, they had rejected the case. Her cascade to death was simply an ongoing and unavoidable reality.

The potential client should always be told not to inform anybody that he or she has consulted with a lawyer or to threaten anybody with a lawsuit. If the potential defendant learned of the potential of a lawsuit, it is not unusual for the potential target to re-examine the medical records with an eye towards self-preservation, i.e., altering or "doctoring" the records.

The potential client should always be directed to immediately obtain copies of the defendant's own records and any hospital or other records under the presumptive control of the defendant. Counsel should never get directly involved in this process; at most, counsel can direct the client on the process of gathering the medical records in the most innocent and non-threatening manner possible. (For the same reason, never — unless it is absolutely unavoidable to avoid the statute of limitations — serve the "90 day" notice before the records are physically in your hands.)

The assumption that a potential physician-defendant will be too honest or too stupid to recognize, and use, the opportunity for self-serving manipulation of the records is naive and foolish. You should assume that the health care provider, once he or she suspects that a malpractice claim is possible, will do anything to protect his or her own interests. Manipulation of the records is always a tempting target.

While it is appropriate — indeed, almost mandatory — to instruct the prospective client to obtain "all" of the records, there are some cases where it may be appropriate to allow the client, solely for the screening purposes, to obtain selected records. The most obvious example is that of a long hospitalization following a singular liability event; such records include hundreds of pages of irrelevant detail. This may be an appropriate occasion to contact the malpractice specialist immediately to determine if this is possible and, if so, what would be the most vital records.

Medical malpractice is a national epidemic, proven by definitive studies by highly respected medical sources, where patients with provable claims of medical malpractice are rarely compensated. Part of this undercompensation is due to factors outside of the control of the responsible legal community, e.g., widespread unfamiliarity with the malpractice compensation system, lawyer-bashing propaganda, individual ignorance of the iatrogenic cause of injury, or refusal to sue a doctor with a pleasant bedside matter. It is inexcusable that, in some cases, truly injured patients, or their heirs, may be denied compensation because the first contacted non-specialist lawyer doesn't know how to initially intake such cases. Such patients, like any victim of compensable negligence, deserve, at minimum, an intelligent screening of their claims.

This post is for educational and information purposes only. It is not legal advice on any particular case, and merely a general opinion of one California lawyer. You should not rely on it without consulting a competent attorney in your area about your specific case and facts. It is not intended to, and shall not, create an attorney-client relationship.

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