Medical malpractice

This morning on the front page, the LAT argues that California's $250,000 cap on pain and suffering awards in medical malpractice lawsuits ought to be raised. The LAT begins the argument by citing the case of a 72-year old woman who died following double knee replacement surgery. Her son, an anesthesiologist, tried to find lawyers to represent his family in a medical malpractice lawsuit against the hospital and doctors who cared for her, but no lawyer would take the case because of California's cap on pain and suffering awards. The LAT fails to mention until near the end of the article that the son was searching for lawyers who would take the case on a contingent fee basis. Had he been willing to pay a lawyer for time and expenses, he surely would have found one.

The LAT takes a swipe at insurers too, arguing that insurers are raising doctors' premiums at a time when their loss payouts have declined. The LAT attributes this to insurers' "business models and financial investments" instead of their "core businesses." The LAT seems not to understand that financial investments are an essential part of an insurance company's core business.

California's cap should be raised to compensate for inflation. But even if it had been raised, no lawyer would take the case of the 72-year old woman's death on a contingent fee basis. Many will not take any case on a contingent fee basis, because it requires a commitment of capital and resources without any assurance of a satisfactory return. It requires lawyers to gamble.

The exceptions to the no-contingent-fee rule may include public interest law firms, class action law suits and law suits against the Catholic church.