Pursuant to the Hippocratic Oath, all physicians vow to"prescribe
regimens for the good of patients and never do harm to anyone." Unfortunately
however, sometimes patients do suffer harm at the hands of their physicians,
either due to an overt act of the physician (e.g., removing the wrong
limb) or the failure to act (e.g., the failure to diagnose a condition).
Whether that harm or injury justifies a medical malpractice ("med-mal")
claim, however, requires an in-depth analysis of the particular situation.
Initially, not all injuries resulting from medical care give rise to a
med-mal claim. Contrary to general perception, the practice of medicine
is an art, not a science ten different doctors could give a patient ten
different diagnoses and treatments and they could all be reasonable under
the circumstances. A med-mal claim exists only where the physician's
act or failure to act "falls below the standard of care in the relevant
community." This means that if nine of the 10 physicians would treat
one way, and the tenth treats a different way and an injury results, the
actions of the tenth may fall below the standard of care and give rise
to a claim. It is the patient's burden to prove the elements that
(1) he suffered an injury, (2) the injury was caused by the physician
and (3) the physician's acts were below the standard of care.
Med-mal cases are inherently complicated because they usually deal with
medical issues that only physicians can explain. This also makes them
very costly because they require the employment of expert witnesses physician's
themselves to testify as to the existence or non-existence of an element.
In addition, there are numerous restrictions on med-mal actions under California
law. Some of the more significant are:
_ A $250,000 limit on non-economic damages (i.e., pain and suffering).
Meaning that regardless of the extent of injury (up to, and including,
death), compensation for pain and suffering is limited to $250,000. Economic
damages such as lost earnings, medical care and other costs are not limited.
_ A physician may introduce evidence of, and be allowed a credit for, benefits
given to the injured patient by his own insurance or through public-based
programs. In other personal injury actions, a defendant cannot claim such a credit.
_ The amount an attorney can charge to handle a med-mal claim is set by
statute and severely limited, often up to one-half of the fees recoverable
in other personal injury actions.
_ If economic damages exceed $50,000, the physician (or more accurately,
the insurance carrier) may elect to make periodic payments.
The complicated nature, high cost, legal restrictions and potential for
large awards usually mean that med-mal claims will be heavily contested
by the physicians and their insurance carrier.