California is one of four states who have a very restrictive medical malpractice law. In fact, when President Bush lobbied for national legislation governing medical malpractice lawsuits, he wanted to pattern the national litigation under California's restrictive law. Thankfully, the national legislation has not been passed.

California's law is known as MICRA and has been in existence since 1977. The law was promoted by insurance companies and physicians who were paying very high rates for malpractice insurance. MICRA has the following features which have had the effect of restricting lawsuits in this area: (1) a limitation of $250,000 for pain and suffering damages; (2) a litigant may only receive compensation for his or her out-of-pocket medical bills (meaning that bills covered by a health insurance plan are not reimbursable to the injured victim of malpractice); (3) restricted attorney's fees; and, (4) insurance carriers covering health care providers are allowed to pay large damage awards over a 20-year period of time.

At first glance, it may seem that restricting damages to the injured victim and also restricting fees paid to his or her attorney is a good thing. However, those restrictions are patently unfair to the injured person. Imagine a situation where a physician's or hospital's negligence causes a person to suffer a catastrophic injury, such as a missed diagnosis of a back problem leading to lifelong paralysis. That victim's pain and suffering damages are limited to $250,000, no matter how egregious the negligence of the particular health care provider. Also, lawsuits against health care providers are very expensive to maintain, since expert medical testimony is always required for the plaintiff to prove his or her case. Therefore, restricting the fees of a party's attorney has created a situation where attorneys are very careful about the cases in which they select, since the return on the attorney's investment is considerably less than other run-of-the-mill personal injury cases such as automobile accidents.

We have found that most jurors are not even aware of these restrictive MICRA laws. Jurors do seem to love their doctors and, consequently, medical malpractice cases which ultimately go to trial before a jury result in a defense verdict in favor of the health care provider about 90% of the time in Southern California.

Having said the above, the Offices of Joel W. Baruch are one of the few in the Orange County area that will take the risk in good medical malpractice cases. We provide legal services in the medical malpractice area on a contingent fee basis (which, under MICRA, is set by law). In most cases that we accept, we also advance the legal costs of pursuing the case. Legal costs include such matters as advancing the payment for your medical expert testimony, your filing fees, your jury fees, and your costs of taking depositions. Of course, if you prevail either by settlement or at trial, those costs are eventually reimbursed to my firm. Contact us and we will provide you with an in-depth evaluation of your medical malpractice case.