$3,000,000 Medical Malpractice Verdict Highlights MICRA Unfairness

The unfairness of MICRA's thirty year old $250,000 cap on non-economic damages was underscored recently in a case tried by Michael Kelly and Doris Cheng on behalf of the parents of a patient who died after his head injury went undetected by an emergency room physician. Ethier v. Poindexter, M.D., (S.F. Sup. Ct. CGC-05-437623). Although a unanimous jury awarded $3,000,000 in wrongful death damages for the loss of Charles and Shirley Ethier's 29-year-old son, the trial judge was compelled to immediately reduced the award to $250,000 (an 83% reduction of the jury's award) in accordance with MICRA's antiquated limits.

In Ethier, Plaintiffs' son presented to the defendant emergency room physician with a head laceration after being struck with a surfboard. Ignoring the possibility of a serious head injury, the defendant neglected to order a CT scan or palpate the wound, and merely sutured the laceration and discharged the patient with a prescription for Vicodin. Shortly after leaving the care of defendant, the patient fell unconscious in his living room and was emergently taken to San Francisco General Hospital where he underwent a CT scan and emergent craniotomy. The decedent suffered a comminuted depressed skull fracture, which lacerated the middle meningeal artery, thereby causing epidural, subdural and intraparenchymal bleeding. As a result of prolonged intracranial pressure, the patient sustained brain death.

The Ethiers filed suit against the emergency room physician for the wrongful death of their son. Knowing that MICRA prevented his liability from exceeding $250,000, the defendant (who had 8 prior claims against him) refused to settle the case because his insurance policy covered liability up to $1,000,000. In essence, MICRA gave him a risk-free trial. (The defendant actually made money sitting in court from the per diem paid by his policy.)

Mike and Doris convincingly argued that had the defendant palpated the wound he would have discovered a skull fracture. The doctor argued that even if he had correctly diagnosed the patient, there would not have been time to arrange an emergency transport to a level one trauma center for evaluation, CT scan and surgical evacuation of the expanding hematoma. However, the jury rejected this argument and awarded Charles and Shirley out of pocket expenses and $3,000,000 in general damages for the death of their son.

The Ethiers are just one of the many families and individuals who have been victimized by MICRA's unfair limits over the last thirty years. The most recent study conducted by the Rand Institute, examining data from actual medical malpractice trials, concluded that defendants' liability is reduced in almost 50% of cases tried in California courts.

For three decades malpractice insurance companies have misled the electorate into believing that medical malpractice cases are responsible for skyrocketing health care costs and driving qualified doctors out of California. In fact, studies show that less than a 1% of all healthcare costs are attributable to legal costs and there is no difference between capped and non-capped states in the ratio of physicians to populations.

It's time California modified its law to protect victims of medical malpractice. There is no justification for telling any parent that if his or her child were struck by a physician driving a car they would be entitled to full compensation, but if killed through the negligence of a physician in the operating room they are only entitled to a fraction of what they are owed.

Spring '07 - MICRA