Sharon J. Arkin, President

TO: Members of the California State Legislature  

FR: Consumer Attorneys of California

DATE: April 29, 2005

RE: “How Malpractice Suits Keep My Profession Honest” – Washington Post – April 24, 2005

On Sunday, April 24, 2005, the Washington Post ran the attached article entitled, “How Malpractice Suits Keep My Profession Honest.”  The author, Dr. Bernard Sussman, discusses ‘the advantages doctors take into the courtroom’ regarding medical malpractice lawsuits.

“Physicians are apt to prevail in these cases because of their professional culture of silence, which can make it difficult for injured patients to secure reliable expert witnesses who will testify on their behalf. Nor is there any acknowledgement of the countless people who are unaware that injuries they have sustained in the hospital should rightly be blamed on medical negligence or error. As a neurosurgeon with some 50 years of clinical experience, I can say from first-hand observation that it's often not the patients' claims that are frivolous, but rather the manner in which those claims are treated.
“During the 36 years I spent as a professor at Howard University College of Medicine, I witnessed and testified in instances of medical malpractice that should give even the most forgiving patient pause:  There were failures to locate a tumor simply because the surgeon operated on the wrong side of the head; and there were patients rendered mute or otherwise disabled because tissue was removed from inappropriate areas of the brain.

“In any civil lawsuit, the jury's decision often comes down to the number and the credibility of each side's expert witnesses. Jurors weigh their credentials, experience and demeanor. In some malpractice cases the plaintiff's charge cannot be sustained because he or she cannot even recruit a doctor who will counter the defense expert's testimony
“But as injured patients continue to seek remedies in America's courtrooms, I know that many of these men and women do not deserve to be scoffed at by defense attorneys charging that their claims are trifling.”

Victims of medical malpractice deserve better.  Further, California’s MICRA should not be used as a model for the nation.  In fact, the MICRA cap should be eliminated, particularly in cases resulting in death or serious injury.  At a minimum, in other cases the cap must be increased to reflect years of inflation which has eroded the value of the cap to less than $68,225.  To adjust for inflation alone since 1975, the cap should be increased to $916,025. 

For additional information about eliminating or raising the MICRA cap, feel free to contact the Consumer Attorneys of California office at (916) 442-6902.