Lessons for the future from 40 years of med-mal practice

Screen your cases well and don’t be cowed by defense; they put up a good front no matter what the case

2014 November

Our office has been handling mostly medical-malpractice cases since before MICRA. MICRA has been a disaster for patients and has drastically affected the availability of lawyers to pursue careless medical practitioners for the harm that they’ve caused. When I first started, there were many top quality personal-injury firms that handled medical-negligence cases. After MICRA was enacted at the end of 1975, many of those firms refused to take new medical-negligence cases. By the time the Supreme Court upheld the constitutionality of MICRA in the early 1980s, the exodus of quality personal-injury lawyers willing to accept medical-malpractice cases had become a flood. The attorneys who remained in the business and those who got into it afterwards started to limit their practice by not accepting medical-malpractice cases where there were no significant special damages. As a result many patients and their families have been unable to obtain experienced representation.

Because of the drastic limitations on damages and the extreme expense of handling these cases, attorneys must be very cautious. Lawyers need to be even more aware of how to maximize awards to their clients and best assure success in pursuing these cases. In this article I discuss techniques, ideas and lessons that we’ve learned and applied in the 40 years that we’ve been doing these cases.

Be proactive

Although plaintiff may have a head start in having the client’s version of events and the medical records early on, defense soon controls by being able to informally talk to the defendant[s] and their staff or colleagues, obtain records you may be unaware of, and tap into their roster of medical experts with ease. They also usually insist on taking and completing plaintiffs’ depositions before you get a shot at the defendant. [This of course can be challenged but more about that later.] They are soon poised to set up summary judgment or adjudication motions.

There are some ways you can even the playing field a bit. Consider filing your own summary judgment or adjudication of issues motion to knock out affirmative defenses. Separate issues can be challenged, e.g., MICRA’s applicability vis-a-vis certain defendants. Recently, a summary adjudication as to whether MICRA applied to an unlicensed neuro tech monitoring spinal cord signal conduction during surgery was brought. The court ruled it did not; reconsideration was denied and writ was denied. Even liability can be challenged by plaintiff’s summary judgment motion. At worst you will flush out a defense expert and his version of the facts; it will also get the attention of the carriers.

Reserve your hearing date right away since budget cuts have at times pushed these hearings many months downstream.

Arbitration motions

Challenge alleged arbitration agreements and almost never agree to or file a demand to arbitrate the case. Exceptions may be where the civil venue is especially hostile or if it is possible to get a fearless neutral.

A petition to compel arbitration is a suit in equity to compel specific performance of a contract. (Spear v. California State Auto. Assn. (1992) 2 Cal.4th 1035, 1040.) The burden of proof rests on the defendants to show compliance with all laws applicable to the contract. (Evid. Code, § 500.) One of those laws, Health & Safety Code section 1363.1, governs disclosure and consent to arbitration clauses in health care service plans:

Any health-care service plan that includes terms that require binding arbitration to settle disputes and that restrict, or provide for a waiver of, the right to a jury trial shall include, in clear and understandable language, a disclosure that meets all of the following conditions:

(a) The disclosure shall clearly state . . . whether the plan uses binding arbitration to settle claims of medical malpractice.

(b) The disclosure . . . shall be prominently displayed on the enrollment form signed by each subscriber or enrollee.

(c) The disclosure shall clearly state whether the subscriber or enrollee is waiving his or her right to a jury trial for medical malpractice, . . . .

(d) [T]he disclosure . . . shall be displayed immediately before the signature line provided for the representative of the group contracting with a health care service plan and immediately before the signature line provided for the individual enrolling in the health care service plan.

(Health & Saf. Code, § 1363.1.)

The disclosure requirements of Section 1363.1 are mandatory, not optional. Without the specific disclosure signed by the enrollee, there is no agreement to arbitrate. In Malek v. Blue Cross of Calif. (2004) 121 Cal.App.4th 44, 16, the Court ruled that a health care service plan could not enforce an arbitration clause since the disclosure was not prominent. Substantial compliance with section 1363.1 is not adequate. (Zembsch v. Superior Court (2006) 146 Cal.App.4th 153, 162-166.)

Conflict out potential good defense experts

If you know who defense may go to for quality expert testimony, see if you can retain that person to review your case, pay him or her the fee and, if the opinion is adverse, or equivocal, don’t use the expert. Defense can’t either. But, keep a paper trail.

Public entities

You have six months from date of accrual of the cause of action to file an appropriate claim with the public entity. The date of accrual is the date the cause of action would otherwise accrue if not against a public entity – typically under the terms of Code of Civil Procedure section 340.5.

In the case of a minor plaintiff, the entity is required to accept a claim if filed no more than a year from date of accrual. (Hernandez v. County of Los Angeles (1986) 42 Cal.3d 1020, 1028.)

If the entity rejects the claim as untimely, consider not filing a Government Code section 946 petition for late claim relief with the court, especially in small communities where there may be a close relationship between the court and the entity. If you allege that you did not discover the injury and its negligent cause until records were recently obtained (i.e., accrual), that is usually enough to get the timeliness issue in front of a jury, not a judge sitting without a jury. Depositions on disclosure by defendant can help.

Also in filing a claim you do not need to and probably should not put a dollar amount of the claim. All you need per the code is “an amount in excess of limited civil jurisdiction” (Gov. Code § 910). Putting a dollar amount in might result in negative publicity when the media picks up the filing. On the flip side, if media spin is a concern, you can start the ball rolling with your version first, putting in a quality and moving description of the carelessness that gave rise to a horrible injury. Still, don’t put in a dollar amount; it elicits negative responses from some of the public that might affect the potential jury pool – especially in small communities.

Consider attaching some photos to your claims to get the attention of the entity decision-makers and possibly the media.

Plaintiff’s depo first?

Defendants seem to be passionate about doing plaintiff’s deposition first, although they have no legal right to take plaintiff’s deposition first: technically, it is whoever notices a deposition first. We usually don’t object to this since defense may not yet have the complete facts or theories and they only get one chance to depose plaintiff. On the other hand, they can pin down plaintiff and educate their witnesses before you get to them. It is a tossup.

Nursing agencies

Nursing agencies are not licensed health-care providers under MICRA. So as to their direct negligence there is no general damage cap. Agencies often employ or provide independent nurses to hospitals without adequate screening. Look at the potential of naming the agency for negligent hiring, etc. and knock out any MICRA affirmative defense by summary judgment, if raised.

Naming a nurse as a defendant is not usually done but should be considered. The nurse witness may be more cooperative if you do and occasionally has her own insurance.

Pick venue

Look for possibilities of filing in a better venue. If there are multiple defendants, check addresses. At times defendants cluster around the border between counties, and you can choose which county to file in. A patient might start at a hospital in one county and end up at tertiary care in another. We just filed a case where the choice was Orange County or San Bernardino. Guess what we chose. Also note that San Bernardino now hears civil only in their new downtown courthouse – not Rancho or Victorville.

Battery

Always look for unconsented-to procedures. Battery is not capped. (Perry v. Shaw (2001) 88 Cal.App.4th 658, 106.)  See also the article by Thomas Cifarelli in this issue.

Extras

• Cell phone bills are always good to get. In a recent case, the only OB on duty in the labor unit – with many patients in labor – made 29 personal calls and, in the process, overlooked evolving fetal distress in plaintiff.• There are usually separate records kept by the labs indicating when samples got to them, were processed and reported out. The same things can be found in radiology. When were results called to the floor or reported?• Get the appropriate policies and procedures. They are some evidence of the standard of care. (Jutzi v. County of Los Angeles (1988) 196 Cal.3d 654.)

Correcting the record

Imaging studies read at community hospitals and even some university institutions as part of their patient care sometimes report erroneous results. It is best to have those studies looked at by your own people and not trust the treaters. Erroneous reads, especially by community practitioners, are not uncommon.

In a recent case, a treating university medical center read out a brain MRI as normal. The retained expert, with much more experience, read it out as showing typical changes of hypoxic ischemic encephalopathy. After meeting with the treater at the university medical center, the erroneous report was re-read and a revised report issued with findings similar to what the retained expert had observed.

This has occurred with autopsy results as well. In one case, the head coroner, when convinced he needed to reassess the cause of death, disagreed with his own staff after discussion with plaintiff’s attorney and so testified.

Doing your own MRI

Many cases are too uncertain without appropriate imaging studies. At times you have to set up MRIs to determine the nature of the injury, although this can be dubious if sedation is required.

Bad doctors

Check the Federation of State Medical Boards for information on physicians who have practiced in other states and California (http://www.fsmb.org). Also check the California Medical Board (http://www.mbc.ca.gov/Breeze/License_Lookup.aspx).

Priority

Grab your priority under Code of Civil Procedure section 36 for children under age 14, for plaintiffs over 70, and for those too ill. If the court grants the motion, you will get a firm trial date that should not be continued more than a brief time. Real trial dates drive settlement.

Hospital condition-of-admission forms are not binding

Hospitals routinely file summary-judgment motions claiming they are not responsible for the negligence of doctors seen by patients at their institution.

But hospitals can be vicariously liable for the negligent acts of the health-care providers practicing within it. The focal point is whether the patient or the hospital selected that provider to treat the patient. California recognized the importance of this distinction almost one hundred years ago. In Brown v. La Societe Francaise De Bienfaisance Mutuelle (1903) 138 Cal. 475, a patient agreed to pay the hospital a fee for setting his broken leg and a daily rate for the hospital room. The Supreme Court concluded that the patient had contracted with the hospital for medical care and, therefore, the hospital was liable for the physician’s negligence. (Id. at p. 476.)

Similarly, in Stanhope v. Los Angeles College of Chiropractic (1942) 54 Cal.App.2d 141, the patient sought treatment at the defendant’s chiropractic college, had not received any previous treatment from it, and did not know any of the chiropractors at the college. The Court of Appeal held that these facts supported the conclusion that the chiropractor who negligently treated the patient was the ostensible agent of the college. (Id. at p. 146.)

Over a dozen years later, the Supreme Court held that the issue of whether a member of the medical staff, selected by the hospital to treat a patient, was an agent of the hospital is a question for the jury. In Seneris v. Haas (1955) 45 Cal.2d 811, the physician was a member of a group of doctors that, by contract, provided anesthesia services on-call for the hospital. Significantly, the hospital, not the patient, selected the anesthesiologist for the patient. The hospital supplied drugs and equipment for the physician’s use and provided the rules and regulations for the physician to follow. The trial court granted a directed verdict in favor of the hospital on the issue of agency, but the Supreme Court reversed:

[I]t cannot be seriously contended that [the patient] was obligated to inquire whether each person who attended her in said hospital was an employee or independent contractor. It follows that the trial court erred in taking the issue of agency from the jury.

(Id. at p. 831.)

The Supreme Court followed Seneris in Quintal v. Laurel Grove Hospital (1964) 62 Cal.2d 154. In Quintal, the defendant hospital tried to evade liability for the errors of its anesthesiologist by inserting language in a “Consent to Admission” form that suggested he was an independent contractor. The physician in Quintal was a member of the hospital’s medical staff, and on a panel of doctors maintained by the hospital to provide anesthesiology services on an as-needed (“on call”) basis. The Supreme Court held that the issue of ostensible agency was a jury question. (Id. at p. 168.)

Most recently, the Court of Appeal in Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448 reviewed these authorities and surveyed the national trend on this point. Mejia came to the same conclusion.

[H]ospitals are generally deemed to have held themselves out as the provider of services unless they gave the patient contrary notice, and the patient is generally presumed to have looked to the hospital for care unless he or she was treated by his or her personal physician. Thus, unless the patient had some reason to know of the true relationship between the hospital and the physician – i.e., because the hospital gave the patient actual notice or because the patient was treated by his or her personal physician – ostensible agency is readily inferred.

(Id. at pp. 1454-1455.)

Regarding the first element, courts generally conclude that it is satisfied when the hospital:

…holds itself out to the public as a provider of care. [Citations.] In order to prove this element, it is not necessary to show an express representation by the hospital. [Citations.] Instead, a hospital is generally deemed to have held itself out as the provider of care, unless it gave the patient contrary notice. [Citations.] (Mejia, supra, 99 Cal.App.4th at pp. 1453-54.)

The appellate court explained that the law of ostensible agency imposes a difficult burden on a hospital that seeks to avoid liability:

When this standard [nonsuit or summary judgment] is applied to the case law governing ostensible agency in the hospital context, it appears difficult, if not impossible, for a hospital to ever obtain a nonsuit based on the lack of ostensible agency. Effectively, all a patient needs to show is that he or she sought treatment at the hospital, which is precisely what plaintiff alleged in this case. Unless the evidence conclusively indicates that the patient should have known that the treating physician was not the hospital’s agent, such as when the patient is treated by his or her personal physician, the issue of ostensible agency must be left to the trier of fact.

(Mejia, supra, 99 Cal.App.4th at p. 1458, italics added).

A hospital can avoid liability under ostensible agency principles, but it bears a difficult burden. The typical “Conditions of Service” or “Conditions of Admission” form is a hodgepodge of distinct issues lumped into one incomprehensible form. It includes an agreement to pay for the services provided, a consent to be treated, a consent to be photographed, an assignment of insurance benefits to the hospital, and information to patients to secure their personal valuables. The typical “Conditions” form also includes a clause entitled “Legal Relationship Between Hospital and Physician.” Despite the title that conveys that there is a relationship between the hospital and physician, the smaller print tries to suggest that there is none. Through the “Legal Relationship” paragraph the hospital will attempt to place an emergency department patient on notice that – in effect – he is selecting and hiring the physicians who are treating him.

This is obviously a fiction. The patient has no choice at all. Moreover, whether a notice is sufficient to inform a party about a fact is a question of fact for the jury to resolve. (See Renton v. Monnier (1888) 77 Cal. 449, 456 [“whether notice was given or not, and, if given, whether [the party] understood it, and it was sufficient to put him on his guard, or, in the language of the Code, to put a prudent man upon inquiry, (Civ. Code, § 19,) were questions of fact for the jury”]; Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 429 [whether a party has notice of circumstances sufficient to put a prudent man upon inquiry as to a particular fact is a question of fact usually to be decided by the trier of fact].)

Mejia addressed the tactic of providing “notice” to an emergency department patient who is in need of immediate medical attention. “Many courts have even concluded that prior notice may not be sufficient to avoid liability in an emergency room context, where an injured patient in need of immediate medical care cannot be expected to understand or act upon that information.” (Mejia, supra, 99 Cal.App.4th at pp. 1454-1455.) The clause itself is misleading because its title conveys the impression that there is a relationship between the defendant and the physicians it selects to treat patients. In bold letters, the clause is entitled Legal Relationship between Hospital and Physician. To the average patient – and especially a patient who needs emergency care – the title states the obvious: There is a legal relationship between the defendant and its physicians. It is only after carefully reading the small print that the emergency patient would learn that the text contradicts what the title apparently conveys.

Serial “day in the life” videos

In appropriate cases, consider doing day-in-the-life videos early on and again closer to trial. Sometimes you can rebut defense IMEs by showing improvement where defense said the plaintiff would never get better – or vice-versa. Since life expectancy is often an issue, multiple videos might change opinions or impeach defense experts. The same holds true with repeat medical exams by your own expert. In some cases that run over years, doing exams two to three times, especially in young children, is worthwhile.

Rated ages

Since defendants may try to annuitize a judgment or offer an annuity in settlement, get your own age ratings from the various carriers. There is often a very large difference in price between annuity carriers. American General and New York Life often have higher age ratings than other carriers. That can be helpful for settlement.

Post-verdict, however, your leverage comes by insisting on spreading the award over several annuity carriers. Some with lower age ratings will cost the defendants much more and put you in a better negotiating position.

Treading water

We often are confronted with young children who appear to have been injured but are too young to fully assess the injury. If the case otherwise is valid, waiting a few years might be helpful. The courts and defense counsel have usually cooperated when we have to delay the case for those reasons.

Statute of limitations and claims-filing requirements

We take the position that the statute of limitations (SOL) or government-claims filing requirements never expire (which is obviously not true) if we otherwise like the case. There are many ways around these timing requirements. The issue becomes a balance between the quality of the case and the difficulty of getting around the SOL or claims issues. “Know or should have known” is subject to a wide variety of interpretations – as are the Government Code sections.

Multiple 250s

Pursue every 250k that is potentially available no matter how remote overcoming an SJM might be. The cap is so low that every effort should be made to claim all possible caps. Consider NIED for every appropriate witness, loss of consortium, and Burgess claims in birth injury cases. Maintain NIED and consortium claims even if the case becomes one for wrongful death.

Trusting your instincts, not negative expert opinions

I am sure you have encountered cases that look good to you but expert opinion you’ve obtained doesn’t back you up. There is a lot of variability in expert opinion and not all of them see the case the same way. A prominent example that comes to mind in our practice was the death of a young healthy mother in childbirth while in a quality hospital. We had four to five experts turn us down. After depos of witnesses, the case looked different. One more expert opinion changed everything.

Coaching and instructions not to answer

Is there anything more annoying? A witness cannot be instructed not to answer a question unless it calls for privileged information. (Stewart v. Colonial Western Agency (2001) 87 Cal.App.4th 1006.) The usual triad of “calls for speculation,” “vague,” and “ambiguous” are not bases for refusing to answer. Coaching objections are just as bad.

Draw the line and go into court. It is probably best to complete the deposition, adjourn and file your motion to compel and for sanctions. The defense is counting on the difficulty of this to discourage you. But doing it often enough will change behavior.

In our experience judges are shocked by the high-handedness of defense counsel in obstructing the depositions. They don’t often get a dose of what it is like in the trenches.

Conclusion

The lessons of 40 years come down to: screen your cases well; don’t be cowed by defense attorneys giving you a hard time by threatening to sue for malicious prosecution, bringing SJMs, inundating you with tons of paperwork, or objecting to every possible discovery request you have. Defense of these cases is handled by a handful of very experienced and knowledgeable defense firms. They know all the tricks of the trade very well. They put up a good front no matter what the case. A front is just a façade; make your own determination of your likelihood of prevailing. You can get help by joining the various list serves that CAALA, CAOC and AAJ maintain and by participating in the many educational seminars available through those groups and others. If you have a question, feel free to call our office anytime.