Howard Kapp, Esq.

How to evaluate medical malpractice cases in California

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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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