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Father Finds Family Loss Is A '250 Case'

Posted by Jane Akre
Tuesday, September 22, 2009 10:32 AM EST
Category: Protecting Your Family
Tags: Tort Reform, Health Care Reform, Big Insurance, MICRA, Medical Malpractice, Caps

A family finds their case is capped without ever going before a jury, part of California tort reform, considered a model state.  
Ryan Volkmuth, San Francisco Chronicle

A 250 Case

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IMAGE SOURCE: San Francisco Chronicle Web site/ image of Ryan Volkmuth

It’s a term lawyers understand more than the general public, unless they’ve been injured.

Wayne Volkmuth understands it, though he wishes he didn’t.

When his seven-year-old son, Ryan, died during a dental procedure in Palo Alto three years ago, Volkmuth researched how he could address what he felt was an act of medical malpractice.

The “250” refers to a $250,000 cap on physical and emotional pain and suffering that results from a medical malpractice claim. For non-economic damages, as they're called, that was the most Volkmuth could expect to receive in a California court following his disabled son’s death. Volkmuth learned that was the limit set 34 years ago by California's medical malpractice landmark law, known as the Medical Injury Compensation Reform Act (MICRA).

According to the National Conference of State Legislatures, all but 15 states have capped medical malpractice awards. California joins Texas and Colorado with the lowest caps on paint and suffering at $250,000. New York does not cap the amount a person can recover in a lawsuit for pain and suffering. Other states cap it at $500,000.

The California cap is the reason most attorneys turned down Volkmuth’s case.

"They basically said we can't do this. They said we believe you have a strong case and we could prevail at trial, but in economic terms it makes no sense for us to take it on," said Volkmuth of Foster City said to the San Francisco Chronicle.

As California Goes

California is a model for the rest of the country, says the president of the state medical association that represents about 35,000 doctors.

Injured families know from first-hand experience what will result if the rest of the country follows the California model.

President Obama promised to consider reforming medical malpractice laws nationwide when he addressed the nation about health care reform in his September 9. His administration has issued grants to states of $25 million to determine how to reduce excessive judgments while at the same time reduce the cost of high malpractice insurance premiums.

"It's really a nightmare if you're an injured patient, or a patient's family member, and don't have large medical bills or large wage losses," said Jamie Court, president of Consumer Watchdog in Santa Monica. "There is no justice."

The $250,000 cap was passed by the Legislature in 1975 and signed into law by then-Governor Jerry Brown. Pain and suffering is capped at $250,000 but there is no cap on medical costs and lost wages. To prove punitive damages, one must establish that the doctor consciously disregarded the patient’s safety, which is nearly impossible without a confession.

Critics note that the $250,000 cap has not been adjusted since it was passed.

And if you are a seven-year-old, or a 71-year-old, there will be little wage compensation, which some say represents an unfair discrimination.

Keeping Costs Down?

A Rand study found that payments have been cut to plaintiffs like Volkmuth by about 30 percent, but at the same time California doctors’ premiums increased by 450% in the first 13 years after the passage of MICRA.

Since then they’ve gone down as a result of Proposition 103, which required up to a 20 percent malpractice insurance rate rollback, says the Foundation for Taxpayer and Consumer Rights in a March 2003 report.

A MICRA-supporter group, Californians Allied for Patient Protection (CAPP), based in Sacramento, says without MICRA, health care costs in California would rise by $7.9 billion a year. CAPP is made up of insurance providers, and physician and hospital groups, who have the most to lose in litigation with injured individuals.

Volkmuth eventually found someone to sue the clinic for wrongful death and negligence and the case is set to go to trial next month.

"It's economic suicide for a medical malpractice lawyer in the state of California to undertake too many or any cases that are capped at just $250,000," said Erik Peterson, a San Francisco medical malpractice attorney to the Chronicle. He will take the Volkmuth's case to trial next month, even if it represents a loss.

“It's ridiculous. You couldn't pay enough to compensate us for what happened to us for the loss of Ryan," says Volkmuth says, acknowledging it’s the only course of action he has in California. #


2 Comments

Anonymous User
Posted by Alicia Volkmuth
Wednesday, September 30, 2009 10:25 AM EST

While I understand the need to cap unreasonable damages in malpractice suits, California needs to reform its law. It needs to factor in inflation and future earnings. This was a short sighted law that was put into place to protect doctors, clinics and hospitals from the multimillion dollar awards. One problem - who is protecting us from the bad doctors, emotionless clinics and greedy hospitals?

No amount of money will soothe the loss of Ryan David Volkmuth, a charming, loving, sweet, brilliant boy. No amount of money will explain away the pain and anguish we have felt from his parents and the impotence the extended family has felt to help. No amount of money will give his siblings their brother or his cousins their friend. But a "reasonable" cap would, perhaps, engender more care, diligence and consideration from the medical community.

Anonymous User
Posted by jessica
Tuesday, October 13, 2009 7:19 AM EST

I am in one of the states that doesn't have a cap. A lot of people believe that the $250k cap includes lost wages, medical care, attorney fees, pain and suffering. In that regard, you might as well just say you are not allowed to sue doctors.

But having the cap ONLY for pain and suffering at $250k I think is plenty. All of your medical costs AND lost wages are taken care of. On top of that, you get 250k. Anything more is just excessive.

Comments for this article are closed.

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