• How Personal Injury Attorneys are Paid
• Medical Malpractice Caps Unfair to Poor
• Exceptions to the Medical Malpractice Cap

This law has been in effect since 1975, and has definitely limited the number of medical malpractice lawsuits filed in the state. Personal injury attorneys, which are generally paid a percentage of their client’s award, and only if they win, are under great pressure to only accept clients with malpractice cases whose facts are “open and shut”, as well as lucrative enough to cover their own expenses. As a result, many victims of injuries can not obtain proper legal representation, as they otherwise would be able to do were these caps not in place.

How Personal Injury Attorneys are Paid
Personal injury attorneys are generally paid on a contingency basis. This equates to a fee that is generally between 25% and 40% of their client’s award. The percentage they are allowed to collect is also limited by state law to no more than 40% of any jugdement or settlement amount. Many personal injury lawyers will charge a smaller percentage on their contingency fee for lawsuits that are settled out of court, prior to going to trial. This reflects the decreased cost attorneys must incur in cases where no trial is necessary. Since contingency fees can not be collected until after an award is made, attorneys must cover most of the expense associated with defending a client until a lawsuit has been completed.

In addition to awards for pain and suffering, which are capped at $250,000, there are additional “actual” damages that can be awarded by a jury during trial. These include expenses that are a direct result of the medical malpractice. These often include Doctor’s bills, hospital bills, medical tests, expert witness fees, copying, filing fees, loss of income due to being unable to work, the loss of additional, potential future income due to personal injury and a number of other personal and sometimes business related expenses.

Although there is no cap on the amount that medical malpractice victims can settle pain and suffering claims for out of court, Doctors and insurance companies rarely settle for an amount greater than the $250K cap, since they know that the victim could not collect any more than that, should the case go to trial.

Medical Malpractice Caps Unfair to the Poor

The cap on medical malpractice awards in California has been criticized for numerous reasons, one of the most compelling arguments being that it is disproportionately unfair to the poor. This is due to the fact that lawyers can often only afford to pursue cases when they include the past and future earning capacity of the malpractice victim. For example, if a 40 year old corporate executive who is paid $300,000 per year is unable to work any longer due to disability that results from a Doctor’s negligence, it can be argued that he will lose $6 million in future earnings (future earnings potential), based upon previously being able to work another 20 years. In this case, the attorney would stand to make as much as $2.4 million in fees, in addition to $100,000 in fees for pain and suffering (under the state cap). However, if a 40 year old janitor making $30,000 year sued for future earnings, the lawyer could only expect to collect a maximum of $340,000 in combined contingency fees. All other facts being equal, most personal injury attorneys would opt to take the case of the wealthy executive, rather than the janitor with a modest income.

Exceptions to the Medical Malpractice Cap in California

Medical malpractice victims can collect more than the $250,000 cap if more than one Doctor, Hospital or other party is involved, and if the cases are separated into different trials. This is rarely the case though, as the costs associated with more than one trial is usually more than a personal injury attorney would want to incur. Ultimately, cases can only be separated if a judge agrees to do so, in addition to at least one of the other parties involved.

An 18 year old girl has filed a lawsuit in San Mateo County Superior Court of California against Nestle USA after being hospitalized with E. coli allegedly contracted from eating uncooked Nestle Toll House cookie dough.

According to her personal injury attorney Bill Marler of Seattle, WA, Jillian J. Collins was hospitalized on May 26th with nausea and abdominal cramps that were later traced to the deadly E. coli bacteria soon after consuming the raw cookie dough.

Nestle USA voluntarily recalled the product after learning of investigations being led by the CDC and FDA into a possible E. coli outbreak linked to the cookie dough. Nestle warns on its packaging that the product is not to be consumed uncooked.

The lawsuit seeks unspecified damages that resulted after the E. coli victim was hospitalized for seven days in May of 2009. The victim is being represented by personal injury attorney Bill Marler of law firm Marler Clark, which specializes in representing victims of E. coli, Salmonella and other food borne illness. Marler had previously filed a lawsuit against Jack in the Box on behalf of a food poisoning victim that was settled in 1993 for $15.6 million in damages.

A copy of the complaint is available on the website of the lawyer representing the victim at http://www.marlerblog.com, which also includes information on other personal injury litigation and news related to foodborne illnesses.

Attorney in Case:
Marler Clark, Attorneys at Law L.L.P., P.S.
6600 Columbia Center
701 Fifth Avenue
Seattle, WA 98104
Phone: 866-770-2032
Website: http://www.marlerclark.com

According to the personal injury lawsuit, the victim’s doctor submitted tissue for biopsy which was examined by Dr. Robert Goldschmidt. The diagnosis returned was “invasive breast cancer”. The physician of the victim relied upon the accuracy of the pathology report and recommended mastectomy surgery at Rush North Shore Medical Center.

“A pathology report was issued by Rush North Shore Medical Center indicating that the surgical specimen was negative for malignancy,” the lawsuit states. The lawsuit further stated that an independent review by the hospital showed that the victim did not have breast cancer.

The lawsuit filed by the couple’s personal injury attorney accuses the physician who prepared the pathology report and the hospital of medical negligence, personal injury, improper diagnosis of cancer, loss of consortium and institutional negligence. The personal injury suit also alleges damages for injuries of a “personal and pecuniary” nature.