Justice Denied? Those seeking to file medical malpractice suits have hit a barrier

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Justice Denied?

Those seeking to file medical malpractice suits have

hit a barrier -- few lawyers willing to take their

cases because of a cap on damages

 

By Lisa Girion

Times Staff Writer

 

August 1, 2004

 

With emergency room doctors and nurses swirling around

her in November, Michelle Geyer stroked and kissed her

7-year-old daughter's pale face, urging her to live.

 

" I was telling her, 'We're going to go to Disneyland.

We're going to get through this, honey. You can do it,

baby. Come on,' " Geyer recalled.

 

Jessie Marie Geyer didn't make it.

 

According to autopsy results, Jessie died of septic

syndrome caused by a bacterial infection that is

commonly treated with antibiotics. Days earlier in

another emergency room, Michelle said, a doctor had

missed the problem.

 

Michelle and her husband, Mark, wanted to know what

had happened. They got comforting words from their

pediatrician and from the hospital where Jessie had

been treated. But they didn't get the answers they

were after, so they decided to sue.

 

The Antioch, Calif., couple figured they would have

their pick of the Bay Area's finest malpractice

lawyers.

 

Instead, four lawyers turned them down— not because

they viewed the case as a loser, but because the most

it could win was $250,000. A fifth, attorney Jeffrey

Mitchell in San Francisco, finally took the case, and

in May he filed suit in Contra Costa County, alleging

negligence by a pediatrician, a local hospital and an

emergency room doctor who treated Jessie. The

defendants declined to comment.

 

The Geyers say that what almost shut them out of the

courthouse is the $250,000 limit on noneconomic

damages, such as pain and suffering, set by a landmark

1975 California malpractice law. There are no caps on

jury awards for economic damages, such as lost wages

and medical expenses.

 

California's malpractice law has been cited by some —

including President Bush — as a national model for

tort reform. Supporters point out that the state's

malpractice insurance rates have risen less than half

the national average since the cap took effect.

 

Yet insurers report no decline in the rate of

malpractice suits per doctor since the cap went into

effect.

 

" No person with a valid claim for malpractice is going

without a lawyer, " said attorney Fred Hiestand, who

runs Californians Allied for Patient Protection, a

Sacramento-based group representing the California

Medical Assn. and insurance companies.

 

But in California, the malpractice law is coming under

increasing fire.

 

Some critics of the $250,000 cap have pointed to a

recent Rand Corp. study, which showed that in 45% of

malpractice cases that went to trial, judges had to

cut noneconomic damage awards by juries — who are not

told about the cap. On average, California juries

awarded $800,000 in malpractice death cases from 1995

to 1999, Rand found.

 

In some eyes, that suggests that medical malpractice

victims and their families should be reaping much

larger payouts than the law allows.

 

Meanwhile, many lawyers say they routinely turn away

malpractice cases that face the $250,000 cap without

the possibility of winning additional damages for lost

wages or medical costs. They note that the cap has

never been adjusted for inflation, while the cost of

bringing a complex malpractice case to court is much

higher than it was in 1975.

 

Lawyers turned down Jessie Geyer's case because, as a

matter of wrongful death, it was " not worth it " to

them, Michelle said. " You are just going to spend up

the cap going to trial. "

 

State Sen. Tom Torlakson (D-Antioch) was so moved by

the Geyers' plight that he decided to draft a bill to

lift the malpractice award cap in California to at

least $900,000.

 

" That cap, at $250,000, is outdated by over a quarter

of a century, " Torlakson said. " It's not only unfair,

but it doesn't provide the level of deterrence or

accountability that I think should be there. "

 

At the same time, the Foundation for Taxpayer and

Consumer Rights is considering sponsoring a ballot

initiative to repeal the malpractice cap. The advocacy

group believes that what has kept the lid on premiums

are legal challenges to malpractice insurers'

requested rate increases — not the cap on damages.

 

" If the truly innocent victims of negligence and

shoddy healthcare are victimized by the cap law, then

it fundamentally doesn't work, " said the foundation's

executive director, Doug Heller.

 

The Geyers' saga began when Michelle took Jessie to

the family's pediatrician in late October. Her

daughter was running a fever and had a painfully

swollen knee.

 

The pediatrician sent them to the emergency room at

John Muir Medical Center in Walnut Creek and

telephoned ahead, advising doctors there he suspected

a " septic knee, " according to Mitchell, the Geyers'

lawyer, who has reviewed the medical records with

experts.

 

Mitchell contends that the emergency room doctor

should have tapped the child's knee and tested the

fluid for a bacterial infection. Even without that, he

said, Jessie's blood tests should have tipped him off.

 

But the doctor's diagnosis was that Jessie had a

virus, Mitchell said. Instead of prescribing

antibiotics, which would have treated the bacterial

infection, he sent Jessie home with instructions to

give her over-the-counter pain relievers.

 

Calling the Geyer case " very sad, " Dr. Jack Lewin,

head of the California Medical Assn., said it

underscored a social dilemma.

 

" If malpractice rates continue to go up, doctors will

not want to take high-risk patients, " he said.

" There's the trade-off. Do you have access to doctors

in an emergency, or do you have access to lawyers in

the rare event that something goes wrong? "

 

Russell Kussman, a Los Angeles physician turned

malpractice attorney, is among those who are wary of

taking on cases that can fall under the $250,000 cap.

 

It can easily cost $100,000 to bring a malpractice

case to trial, he said, by the time expert witnesses,

court reporters and others are paid. Even if he wins a

capped malpractice trial, Kussman figures that he may

earn $50,000 in the end — not nearly enough to justify

the many hours such a case requires.

 

Still, Kussman occasionally hears of cases that he

can't turn away.

 

That's what happened when the daughters of a woman who

had died of breast cancer alleged that their mother

had been informed that a malignant biopsy was

negative. The two women claim the error wasn't noticed

until their mother went back for a routine visit 18

months later. " By then, it was too late, " Kussman

said.

 

In capped cases, $250,000 is usually the starting

point for defense lawyers in settlement negotiations,

Kussman said. " They try to negotiate you down from

there. "

 

In the breast cancer case, he remembers one defense

lawyer telling him, " I can't believe you're taking

this. It's a 250 case. "

 

" They should come to me, " Kussman asserted, " and say,

'This is terrible. Here's the $250,000. It's the least

we can do.' "

 

But Howard Mandel, a Los Angeles

obstetrician-gynecologist, believes that the reason

lawyers don't want to take capped claims is that they

can make so much more on cases with unlimited economic

damages, such as lost wages and ongoing medical costs.

 

The malpractice cap has done nothing to stop those

suits, he said, and the fear of getting hit with a

huge damage award remains.

 

" You don't want to be in a situation where an

emergency room doctor taking care of you is unhappy

because they are afraid they are going to get sued, "

Mandel said. " The money we're wasting to protect our

backsides could be spent " providing coverage for

uninsured people.

 

Indeed, Hiestand said, doctors, hospitals and

malpractice insurers are getting hit with ever-larger

economic damage awards.

 

Without the malpractice cap law, " they'd be sunk, " he

said. " Settlements are driven by verdicts, and they

have been going up astronomically because of the

economic damage component. If you don't find some way

to control that, that's going to be the next crisis. "

 

Nine months after Jessie's death, the Geyers are still

reeling from their loss.

 

" We will never be the same, " said Michelle Geyer, a

small woman who has lost 26 pounds. " I'm skin and

bones. I had to start my counseling again…. I'm just

withering away. "

 

Michelle said her two sons, Jamison, 4, and Jordan, 5,

are having trouble coping with the idea that death is

final. Jordan recently requested that his mother go

open Jessie's " angel's box " and ask the doctor to try

again.

 

Another day, he piled up his most cherished toys, and

the boy told his mother he didn't want them. " I just

want my sister, " he said. " Bring back my sister. "

 

" I just held him, " Michelle recalled, " and said, 'I

wish I could, sweetie.' "