Comstock's magazine 0219 - February 2019 - Page 48

n LAW M amas, don’t let your babies grow up to be medical At the hospital emergency room, Callaham says she was malpractice lawyers. That may lack the ring of examined by a nurse practitioner and sent home without a Waylon Jennings’ original, but area attorneys say full workup. By early the next morning, the symptoms were it’s a reality given the money-losing proposition worse, and mother and baby were back at the hospital. Five of bringing malpractice cases in California. hours later, the girl died of necrotizing enterocolitis. The economics are grim. In 1975, California’s two main Callaham made a settlement offer to the practitioner medical malpractice insurers announced huge premium and supervising doctor, which they rejected. So he took the increases and threatened to drop all coverage in the state. case to trial in late 2016 and won a jury verdict of $2.5 mil- In response, new Gov. Jerry Brown and the legislature re- lion. But the 1975 state law caps noneconomic damages in sponded with a law that set a $250,000 ceiling on noneco- malpractice claims to $250,000, and the family could show nomic damages in malpractice cases, a figure that wasn’t no economic damages associated with losing an infant indexed to inflation. In most cases, attorneys pay their other than the funeral expenses. So the $2.5 million was own expert-witness costs out of pocket and get reimbursed cut to $250,000 plus the funeral expenses, which came to from the damages awarded. The law also capped attorneys’ about $5,000. fees in malpractice cases such that on a $250,000 judg- Most of that went to the patient. Callaham had spent ment, a plaintiff’s attorney can collect a maximum of just about $95,000 out of pocket on expert witnesses alone. “I’d over $74,000. do it again because it was Outcomes like that help the right thing to do for the explain the dramatic drop in client,” says Callaham, a the state’s malpractice claims past president of the Amer- — from more than 1,600 an- ican Board of Trial Advo- nually in 1992 to fewer than cates — but he actually lost 800 in 2017. Fewer claims do money on the case. also mean lower insurance costs. A 2012 study in the TAKING THE CASE Journal of Law, Economics, & Trial attorneys nowadays Organization concluded that refuse nearly all malprac- these types of reforms save tice claims that patients providers between 1 and 2 bring them. “I sometimes percent in premiums. refer to it as the pro bono – Brooks Cutter, But attorneys and experts portion of my practice,” personal injury attorney and former president, say ever fewer plaintiffs’ law- says Brooks Cutter, a Sac- yers are able to afford to pur- ramento personal injury Capitol City Trial Lawyers Association sue malpractice cases given attorney and past president the state cap, and the diffi- of the Capitol City Trial culty of finding and paying Lawyers Association, of his the rising cost of expert witnesses. While the falling case malpractice cases. “It’s a good way to go out of business.” numbers have cut health providers’ insurance premiums, His firm turns down 95 of every 100 of those cases brought plaintiff lawyers claim harmed patients are ultimately the to them. Callaham’s numbers are similar: 75-100 people losers, since there’s no evidence of a corresponding drop in come to his firm a month with a medical rates of medical error. claim, but the firm takes on between 2 and 5 percent of those. GRAVE CONSEQUENCES The 1975 statute put no limit A few years ago, William Callaham, a partner at Sacramento- on economic damages, like lost based Wilcoxen Callaham, took the case of a family in Ama- income or compensation for dor County whose baby girl was born premature. About past and future medical care. one in 10 premature babies develop necrotizing enteroco- The noneconomic damages, litis, in which part of the bowel dies. At 13 days, the baby capped at $250,000, had stopped eating, was fussy and had blood in her stool. (continued on p. 50) “I sometimes refer to [medical malpractice] as the pro bono portion of my practice. It’s a good way to go out of business.” 48 | February 2019