Sadly, there are times in medical care whether because of all the money involved or because of bad-intentioned people, that health care providers do very bad things. And when they do, they can cause great harm.

Recall medical negligence refers to unacceptable carelessness or inattention but not to any bad intent. There are layers of increased wrongdoing in medical care as in all human interaction. The next worse level is called recklessness.

Recklessness describes when one acts in a way not necessarily meaning to harm somebody but taking actions with disregard for others’ safety, health and welfare. That is, you don’t intend to hurt somebody, but take actions that you know are likely to cause someone to get injured.

Think of a person driving at a hundred and fifty miles an hour. They may not mean to kill somebody else, but they are aware and may very well do so.

There are certain actions that, health care providers, particularly doctors, and most critically surgeons, that are extremely likely to cause someone’s death or serious injury.

As an example, imagine a surgeon, after, say, heart surgery is aware of tests clearly showing that the patient’s heart is not working optimally, and that an issue needs to be promptly diagnosed an addressed. If instead the doctor elects to leave the operating room and go to a business meeting, despite people in the operating room advising that the situation is getting worse.

Now, the surgeon may not have wished you harm or intended to harm the patient, or even desired to harm you, but any reasonable health care provider would know that the likelihood of serious harm in taking this course of non-action was great. That’s an example of recklessness.

The next and even worse level of medical wrongdoing is intentional wrongdoing. This is where the health care provider meant to cause a patient harm.

There’s sometimes a fine line between recklessness and intentional wrongdoing. Using the example above, if the surgeon meant to leave, but they didn’t really want to hurt the person that might be only recklessness. In the event they meant to do something that was going to cause a certain problem, then it’s intentional wrongdoing.

An example of intentional wrongdoing that sadly does arise is when a surgeon performs surgery that the surgeon knew was not necessary, and the surgery resulted in serious harm to the patient. This would be viewed as the surgeon meant to commit the fraud. Or the surgeon induces the patient to undergo the surgery by making them believe that they had something wrong with them that wasn’t wrong, or they intentionally removed an organ that was healthy.

Now, say the patient died. The surgeon may not have intended to kill the patient, but they certainly intended to commit a battery. The injury may not have been intended but the wrongful act was, an obviously put the patient at risk for the injury.

In general under the law, if you intended to cause a person injury by your wrongdoing and even worse, injury occurred, you’ll be responsible for the even worse injury. It’s kind of like going into a bank and you really only meant to rob the bank. But if five people are shot during the robbery, generally the robber will be held responsible for the shooting of the five people too.

Medical malpractice is just a term for medical wrongdoing by your doctor, hospitals and other persons you pay to provide you with proper health care.

There are lots of different types of medical wrongdoing.

The least serious category of medical wrongdoing commonly is referred to by lawyers as negligence. That is simply a fancy way of saying that the health care provider has been careless, lazy, inattentive, unknowledgeable, unprepared or unskillful to a degree that fails to meet the standard that would be expected of a reasonably prudent health care provider in that community and in those circumstances.

There are many, many ways, just like with driving a car, that a person can fail to meet the standards. It’s important to understand this when you are considering bringing a medical malpractice lawsuit. Even though your doctor, health care provider, or hospital may become extremely defensive, both because of their pride and because of money, you’re not necessarily accusing them of being bad doctors or bad hospitals, much less bad human beings, any more than if you caused an automobile accident when you were not driving your very best. The people suing you likely would not be accusing you of being a bad person. Rather they merely are claiming you didn’t meet the standards of driving in the community (e.g., exceeded the speed limit, but not ridiculously), and that the injuries they suffered was an accident of this substandard driving. Further, because it’s your fault, society is going to shift the burden to you to take the financial responsibility for the harm that you caused.

Similarly, in the state of California, if a judge or jury decides that if a doctor or other health care provider failed to meet that standard in the community, and that failure caused your injury, then that health care provider is responsible for your injury. And responsibility means they must compensate you for that injury.

In a negligence case, “Compensation” legally means to give back what was taken away from the victim, not for punishment. So if you or a loved one has been harmed by the carelessness of a doctor so you couldn’t work, you’ll get back that loss of earnings. If you’re not able to do the necessary things around your household, and now have to pay somebody else to do them, you can seek recovery for that, and for various other out-of-pocket expenses (called economic damages).

You also may be entitled to “non-economic” damages, that is compensation for intangible things you have lost. That’s sometimes called emotional damages, and includes compensation for, “pain and suffering” and loss of enjoyment of life.

Unfortunately, in California, if it’s a regular run-of-the-mill negligence medical malpractice case, there is a cap on the amount that you can recover for these non-economic damages, even if the harm is unbelievably vast, such as if a doctor negligently caused you to become a quadriplegic, that is, you can’t move your arms, you can’t move your legs, you can’t control your bowels or your bladder, etc. Despite all of the sadness that that brings and all of the negative changes in your life, even loss of many years of your life, your recovery is still limited. Specifically, the top limit of what you can recover for all of the non-economic loss is two hundred and fifty thousand dollars ($250,000).

So when you have a medical negligence case, it revolves around three elements that you have to prove.

(and Minimize Your Opponents’ Advantages)

By:  Steven A. Heimberg, M.D., J.D.

Virtually all medical malpractice injury litigation requires the plaintiff to collect and analyze the victim’s medical records.  Unfortunately, more often than not, one or more of the defendants (either directly or through back-channel, insurance-company connections), has better access to these records than do you or your clients.

This is particularly true in medical malpractice cases, in which the defendants’ medical records are the main non-testimonial source of evidence, and often the only source of inculpatory evidence available to the plaintiff.  Knowing this, defendants routinely generate medical notes presenting the facts in the light most favorable to them.

These self-serving chart notes, they hope, will serve either as a defense or a deterrent to ever bringing a lawsuit.

In some instances, the chart will have been “buffed”.  That is, although the records will not actually have been altered, they will have been creatively scripted to present a defense.  In fewer (but still surprisingly many) cases, the records actually have been changed, “lost” or destroyed.

Further, medical facilities (for both innocent and not-so-innocent reasons) have devised systems whereby relevant medical documents in their possession are routinely withheld from plaintiffs and plaintiffs’ counsel. 

Many records are withheld pursuant to excuses of protecting other patients’ privacy or secondary to a claim of evidentiary privilege.  Others are withheld merely by arcane record-keeping systems, in which obviously relevant records are deemed not to be part of the “designated record set.”

These tactics place plaintiffs in a precarious position.  The potential perils of possessing inadequate information often become realized as litigation progresses.  The defendants’ lay and expert witnesses often have available to them records and attorney-provided information not available to the plaintiff. 

This enables defendants to sabotage the plaintiff’s case, primarily by eliciting concessions from the plaintiff’s experts regarding facts unknown to (and unknowable by) them at the time of deposition.

Fortunately, diligent plaintiffs’ counsel can turn many attempts by defendants (to buff, fiddle with, lose, hide or withhold medical records) to their clients’ advantage.  For example, concocted statements invariably limit the positions that the defendant can take at deposition and trial, and permit plaintiffs’ counsel to focus their investigation.

If there is a sufficient amount of written material, there virtually always will be inconsistencies between the wishful positions created by the defendants and other sources of information in the medical records.  And a few legal tactics can go a long way towards limiting or punishing defendants’ attempts to deep-six or withhold medical information.

The keys are: (1) knowing where to look, how to look and what to look for; and (2) knowing some of the legal buttons to push.

Heimberg Barr LLP is proud to announce that the firm has been named the winner of the prestigious Elite Trial Lawyers award, presented by The National Law Journal. The award designates Heimberg Barr LLP as the nation’s top plaintiffs’ medical malpractice law firm.

The National Law Journal Elite Trial Lawyers award “recognizes U.S. based law firms that have performed exemplary and cutting-edge work on behalf of plaintiffs.” The editors and reporters vetted and nominated firms from around the nation, then selected finalists in 20 major practice areas, and then determined who they believed to be the top of the Elite in each practice category.

This is the only time this award has ever been won by any California based firm. That is not surprising, given the challenging environment for plaintiffs’ medical lawyers in California created by MICRA (Medical Injury Compensation Reform Act of 1975), which severely restricts recoveries by Californians injured by medical negligence.

Heimberg Barr LLP has secured some of the highest medical malpractice awards ever paid in in the state of California, including a 2018 verdict that was over three times larger than the prior largest verdict in California history.

It has also obtained for its clients what were, at the time, the highest medical verdicts and settlements in Los Angeles County, Riverside County, Santa Barbara County, Fresno County, and Ventura County.