Justinian Lane

A Personal Story about MICRA and Defensive Medicine

About a month ago, my mother-in-law discovered a boil under her arm.  It didn't go away after a couple of days, so she tried to pop it unsuccessfully.  The next day it had swollen up to the size of a golf ball, so she went to her doctor.  About a week after she first discovered the boil, her doctor determined it was an MRSA infection and needed to be lanced.  It was lanced around 12/20, and my mother-in-law was given antibiotics and ordered to stay in bed.

She did stay in bed, but her condition worsened over the next few days.  She was constantly tired and had no appetite.  On Christmas morning, she had chest and back pains, and trouble breathing so my brother-in-law took her to the emergency room.  The two of them spent most of Christmas day in ER, with her receiving IV fluids because she was so dehydrated.    Despite the possible signs of a heart attack, the staff didn't investigate further; they told her the chest and back pains were simply caused by a flu.  My mother-in-law was released from the ER later that evening.  Upon her return home, she was too tired to even talk to my wife.

She woke up very early in the morning, and her symptoms had worsened.  She couldn't catch her breath and was very panicky.  My brother-in-law called 911 and she was taken to the hospital via ambulance.  Despite her serious symptoms, the paramedics admitted her as a "Code 1," which is the lowest-priority.  Within an hour of her arrival at the hospital, she started to crash.  She was taken to the ER - finally - and was then intubated.  My brother-in-law called my wife and she immediately began looking for flights to see her mother. 

While we were looking for flights, my brother-in-law called again. 

He informed us that my mother-in-law's condition had stabilized and she was off the ventilator.  My brother-in-law was going to meet with a doctor shortly and he would call us to let us know what was going on.  He called about 30 minutes later and could say only, "she's gone." 

At only 53 years old my mother-in-law passed away on 12/26/2007.  The doctors told my brother-in-law that "she was so cold and dehydrated that her heart just couldn't cope."  At 3:00am on the 27th, my wife caught the first available flight to California to be with her brother and assist in settling her mother's affairs.  As an aside, almost all airlines have eliminated bereavement fares. 

I've spent the last few weeks grieving, as I truly loved my mother-in-law.  She was a kind, supportive, and funny woman who never - not once, not ever - caused me any strife or trouble.  I couldn't have asked for more.  I will miss her always.

My suffering of course pales in comparison to that of my wife and her brother.  Not a day has gone by since the 27th that my wife hasn't called me sobbing, wishing she could see her mother just once more.  A cruel coincidence is that our wedding anniversary is also the 27th; neither Christmas nor our anniversary will ever be the same.  And my poor brother-in-law: He also had the unlucky coincidence of sharing a birthday with his mother.  He's also an orphan at 22, as his father passed away a few years ago from cancer he contracted after Agent Orange exposure.

More than a few signs suggest that my mother-in-law may have been the victim of medical malpractice:

  • The ER may have misdiagnosed a heart attack and released her home when she should not have been
  • The ambulance didn't admit her to the ER, and in fact spent close to 20 minutes trying to get her blood pressure - before taking her to the hospital
  • One of the medications she was prescribed is not supposed to be prescribed to diabetics (which she was) because it causes a loss in blood pressure

But we'll never know if she was the victim of malpractice.  Put another way, we will never know if she'd still be alive today if doctors had run more tests or taken action sooner.  That's a question that will haunt my wife, her brother, and me for the rest of our lives.  And why won't we know? 

Because California enacted the Medical Insurer's Compensation Reform Act of 1975 (MICRA) in an effort to protect doctors from rapacious insurance companies.  Among other things, MICRA caps awards for noneconomic damages at $250,000 and caps attorney fees on a sliding scale.  Because my mother-in-law wasn't providing financial support to her children and has no surviving spouse, any recovery would be purely noneconomic damages and thus limited to $250,000.  Attorney fees would therefore be limited to a maximum of $74,250. 

$75,000 in attorney fees may sound like a lot, but it really isn't when it comes to a medical malpractice case.  Especially considering potential defendants include doctors, the hospital, and ambulance company, and perhaps even a drug manufacturer or two.  It's not unrealistic to expect that an attorney could spend $50,000 building this case.  Spending $50,000 to recoup $75,000 isn't necessarily the best investment of an attorney's time and money.  And since the attorney would recover his or her expenses, that would mean it's possible the attorney would receive more of the settlement than my wife and brother-in-law - something no attorney wants to happen.  All of the above assumes that there was in fact medical negligence.  It's equally possible that an attorney would spend $5,000 or more obtaining medical records and hiring experts only to discover that there was no medical negligence.  But again, thanks to MICRA, we'll never know.

I'm no doctor, but I can't help but suspect that had the emergency room practiced defensive medicine and not released her on Christmas day, my mother-in-law would still be alive today.  Or perhaps if the ambulance company would have practiced defensive medicine and admitted her as a Code 3, she'd still be alive.  Maybe even if her doctor had practiced defensive medicine by not prescribing medicine that is contraindicated for diabetics, my mother-in-law may still be alive today.

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Posted at 10:36 AM, Jan 09, 2008 in
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That's a terrible, terrible story. I am so sorry for your loss.

Posted by: Daniel Goldberg | January 9, 2008 3:08 PM


Please accept my condolences for this loss.

And, unfortunately, you are exactly right about the effects of MICRA. I'm an attorney practicing at a plaintiff's firm in California and we turn away virtually every potential med-mal case that comes through our door. And, if anything, you understate the costs involved. It is not uncommon to spend $200K or even much more to prepare a medical malpractice case - especially if there are multiple experts required. Well-qualified, board-certified experts often charge $800-$1200 _per hour_. If you have complex case involving multiple potential causes; e.g. was a person's death caused by an error by the anesthesiologist, the surgeon, a nurse, a doctor providing after-care, or by a drug, you will need to hire at least one expert in each of those fields.

Your desire to know what really happened is probably the most common reason I hear from people about why they want to bring a lawsuit. After someone is injured or dies as a result of likely malpractice, hospitals and doctors often fail to be candid with the family about what happened. I understand that - obviously - this is motivated by a desire to avoid admitting liability. But I'd bet that there would be far fewer lawsuits if doctors fessed up to their mistakes and honestly apologized to the family.

Anyway - I am so sorry that you had a personal experience with this unfair system.

Posted by: TDE | January 9, 2008 5:32 PM

Justinian: Thank you for sharing your story in your time of grief. From DMI and TortDeform, our sincerest condolences to you and your family.

Commenters: While I am usually fairly liberal with the comments section I have deleted comments that I have deemed inappropriate. Commenters may e-mail me if they have concerns, but I won't republish them.

Posted by: Kia | January 10, 2008 2:04 AM

Please post your "Election 08" separately from this story so that it can receive the uncensored debate the topic deserves

Posted by: Paul W Dennis | January 10, 2008 6:14 AM

not quite sure what paul means here???

Posted by: Kia | January 10, 2008 12:45 PM

oh, nevermind, i see it. that's a glitch. thanks.

Posted by: Kia | January 10, 2008 1:03 PM