Article on Medical Malpractice Suit Focuses on Tragedy But Neglects The Law

There was an interesing article in the LA Times on January 23, 2011 concerning a lawsuit against UCLA Hospital arising out of the tragic death of a young girl. The girl, Olivia Cull, 17, died while undergoing a procedure related to a faulty heart valve. Her problem was congenital. She had had similar procedures to the one she underwent on the date she was injured. She was a bright, kind young woman; by all accounts full of promise.

The article’s point was that it was too hard to sue for medical malpractice in California. The article noted here there is a cap on pain and suffering damages of $250,000 in the state which makes it hard to find lawyers willing to take the cases. 

All true. I agree that it is too hard to bring medical malpractice cases in California. I agree that the cap of pain and suffering damages of $250,000 is too low (the law was enacted in the 1970s when, presumably, $250,000 was more money than today). Want to read more about the medical malpractice cap? Click here.

But there is a big problem with the article. It never states what the health care providers did that was negligent or wrong. The basis of every med mal lawsuit (and every injury suit) is the breach of a duty of care. If there is no breach of a duty of care, one has no basis for a suit. Sometimes people die while in the hospital. This fact is horrible and tragic especially when it’s a young person. But the hospital doesn’t have to pay because the patient dies; the hospital has to pay when it or its agents such as nurses and doctors do something negligently that causes injury or death.

There is irony here. Many people’s emotional reaction to the untimely death of a child while in the care of a hospital is that the hospital is responsible, no matter what. Not true, because that is not justice. Because a hospital has money and treated a patient who suffered an injury or died, does not mean the hospital has breached its responsibilities. The plaintiff must show the standard of care of the hospital in treating the patient was below that which was the norm in the area.

And yet at least according to popular media many people believe that there are too many “frivilous” lawsuits and caps on pain and suffering and other rules that limit malpractice claims keep costs down, for everyone.  Really?  There is no evidence that malpractice caps weed out frivolous lawsuits. Juries and judges are not dumb. They don’t award big verdicts to frivolous lawsuits. A cap is much more likely to influence a legitimate case, a case where a large award is justified.

The media in the U.S. seems to be left leaning. With more journalists and pundits in favor of Democratic positions than in favor of Republican ones. But one area of journalism seems to be out of sync–the reporting on “tort reform.” Lawsuits and judgments are often the only way to bring the large companies and government entities to account for their misdeeds. It seems that the media is generally hostile to trial lawyers and lawsuits. This is a decidedly Republican position as it is the party who favors big business, champions tort reform and the minimization or exclusion of juries from the injury law system. 

In their paper entitled “Faulty Data and False Concusions the Myth of Skyrocketing Malpractice Verdicts” academics Lewis L. Laska, J.D., Ph.D. and Katherine Forrest, M.D., M.P.H.  report, “The premise that medical malpractice awards have been rising dramatically in the United States in recent years, driving up the cost of healthcare and forcing physicians out of practice, is not supported by relevant evidence.”

In light of the public relations campaign waged by big business against accident and malpractice cases, fighting for the rights of accident and malpractice victims is getting harder and harder. Victims need aggressive attorneys who can make sure the jury or judge sees the whole picture and accurately values the damages.

If you have been injured in a medical setting or an accident setting, contact the law offices of Galen Gentry for a free, no obligation consultation. Top rated, trial experienced, exceptionally good.

Telephone: 800 486-6814 or email

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