Justice Denied?

With emergency room doctors and nurses swirling around her in November, Michelle Geyer stroked and kissed her 7-year-old daughter’s pale face, urging her to live.

“I was telling her, ‘We’re going to go to Disneyland. We’re going to get through this, honey. You can do it, baby. Come on,’ ” Geyer recalled.

Jessie Marie Geyer didn’t make it.

According to autopsy results, Jessie died of septic syndrome caused by a bacterial infection that is commonly treated with antibiotics. Days earlier in another emergency room, Michelle said, a doctor had missed the problem.

Michelle and her husband, Mark, wanted to know what had happened. They got comforting words from their pediatrician and from the hospital where Jessie had been treated. But they didn’t get the answers they were after, so they decided to sue.

The Antioch, Calif., couple figured they would have their pick of the Bay Area’s finest malpractice lawyers.

Instead, four lawyers turned them down-- not because they viewed the case as a loser, but because the most it could win was $250,000. A fifth, attorney Jeffrey Mitchell in San Francisco, finally took the case, and in May he filed suit in Contra Costa County, alleging negligence by a pediatrician, a local hospital and an emergency room doctor who treated Jessie. The defendants declined to comment.

The Geyers say that what almost shut them out of the courthouse is the $250,000 limit on noneconomic damages, such as pain and suffering, set by a landmark 1975 California malpractice law. There are no caps on jury awards for economic damages, such as lost wages and medical expenses.

California’s malpractice law has been cited by some -- including President Bush -- as a national model for tort reform. Supporters point out that the state’s malpractice insurance rates have risen less than half the national average since the cap took effect.

Yet insurers report no decline in the rate of malpractice suits per doctor since the cap went into effect.

“No person with a valid claim for malpractice is going without a lawyer,” said attorney Fred Hiestand, who runs Californians Allied for Patient Protection, a Sacramento-based group representing the California Medical Assn. and insurance companies.

But in California, the malpractice law is coming under increasing fire.

Some critics of the $250,000 cap have pointed to a recent Rand Corp. study, which showed that in 45% of malpractice cases that went to trial, judges had to cut noneconomic damage awards by juries -- who are not told about the cap. On average, California juries awarded $800,000 in malpractice death cases from 1995 to 1999, Rand found.

In some eyes, that suggests that medical malpractice victims and their families should be reaping much larger payouts than the law allows.

Meanwhile, many lawyers say they routinely turn away malpractice cases that face the $250,000 cap without the possibility of winning additional damages for lost wages or medical costs. They note that the cap has never been adjusted for inflation, while the cost of bringing a complex malpractice case to court is much higher than it was in 1975.

Lawyers turned down Jessie Geyer’s case because, as a matter of wrongful death, it was “not worth it” to them, Michelle said. “You are just going to spend up the cap going to trial.”

State Sen. Tom Torlakson (D-Antioch) was so moved by the Geyers’ plight that he decided to draft a bill to lift the malpractice award cap in California to at least $900,000.

“That cap, at $250,000, is outdated by over a quarter of a century,” Torlakson said. “It’s not only unfair, but it doesn’t provide the level of deterrence or accountability that I think should be there.”

At the same time, the Foundation for Taxpayer and Consumer Rights is considering sponsoring a ballot initiative to repeal the malpractice cap. The advocacy group believes that what has kept the lid on premiums are legal challenges to malpractice insurers’ requested rate increases -- not the cap on damages.

“If the truly innocent victims of negligence and shoddy healthcare are victimized by the cap law, then it fundamentally doesn’t work,” said the foundation’s executive director, Doug Heller.

The Geyers’ saga began when Michelle took Jessie to the family’s pediatrician in late October. Her daughter was running a fever and had a painfully swollen knee.

The pediatrician sent them to the emergency room at John Muir Medical Center in Walnut Creek and telephoned ahead, advising doctors there he suspected a “septic knee,” according to Mitchell, the Geyers’ lawyer, who has reviewed the medical records with experts.

Mitchell contends that the emergency room doctor should have tapped the child’s knee and tested the fluid for a bacterial infection. Even without that, he said, Jessie’s blood tests should have tipped him off.

But the doctor’s diagnosis was that Jessie had a virus, Mitchell said. Instead of prescribing antibiotics, which would have treated the bacterial infection, he sent Jessie home with instructions to give her over-the-counter pain relievers.

Calling the Geyer case “very sad,” Dr. Jack Lewin, head of the California Medical Assn., said it underscored a social dilemma.

“If malpractice rates continue to go up, doctors will not want to take high-risk patients,” he said. “There’s the trade-off. Do you have access to doctors in an emergency, or do you have access to lawyers in the rare event that something goes wrong?”

Russell Kussman, a Los Angeles physician turned malpractice attorney, is among those who are wary of taking on cases that can fall under the $250,000 cap.

It can easily cost $100,000 to bring a malpractice case to trial, he said, by the time expert witnesses, court reporters and others are paid. Even if he wins a capped malpractice trial, Kussman figures that he may earn $50,000 in the end -- not nearly enough to justify the many hours such a case requires.

Still, Kussman occasionally hears of cases that he can’t turn away.

That’s what happened when the daughters of a woman who had died of breast cancer alleged that their mother had been informed that a malignant biopsy was negative. The two women claim the error wasn’t noticed until their mother went back for a routine visit 18 months later. “By then, it was too late,” Kussman said.

In capped cases, $250,000 is usually the starting point for defense lawyers in settlement negotiations, Kussman said. “They try to negotiate you down from there.”

In the breast cancer case, he remembers one defense lawyer telling him, “I can’t believe you’re taking this. It’s a 250 case.”

“They should come to me,” Kussman asserted, “and say, ‘This is terrible. Here’s the $250,000. It’s the least we can do.’ ”

But Howard Mandel, a Los Angeles obstetrician-gynecologist, believes that the reason lawyers don’t want to take capped claims is that they can make so much more on cases with unlimited economic damages, such as lost wages and ongoing medical costs.

The malpractice cap has done nothing to stop those suits, he said, and the fear of getting hit with a huge damage award remains.

“You don’t want to be in a situation where an emergency room doctor taking care of you is unhappy because they are afraid they are going to get sued,” Mandel said. “The money we’re wasting to protect our backsides could be spent” providing coverage for uninsured people.

Indeed, Hiestand said, doctors, hospitals and malpractice insurers are getting hit with ever-larger economic damage awards.

Without the malpractice cap law, “they’d be sunk,” he said. “Settlements are driven by verdicts, and they have been going up astronomically because of the economic damage component. If you don’t find some way to control that, that’s going to be the next crisis.”

Nine months after Jessie’s death, the Geyers are still reeling from their loss.

“We will never be the same,” said Michelle Geyer, a small woman who has lost 26 pounds. “I’m skin and bones. I had to start my counseling again.... I’m just withering away.”

Michelle said her two sons, Jamison, 4, and Jordan, 5, are having trouble coping with the idea that death is final. Jordan recently requested that his mother go open Jessie’s “angel’s box” and ask the doctor to try again.

Another day, he piled up his most cherished toys, and the boy told his mother he didn’t want them. “I just want my sister,” he said. “Bring back my sister.”

“I just held him,” Michelle recalled, “and said, ‘I wish I could, sweetie.’ ”

* (BEGIN TEXT OF INFOBOX)

An adjusted cap

The $250,000 cap on noneconomic malpractice awards was set in 1975 and has not been changed. HereÕs how the cap would have risen if adjusted for inflation:

(in thousands) 1975: $250 2004: $882

Data are compounded and based on the consumer price index each year.

Sources: Times research, Bureau of Labor Statistics **

A tale of plaintiff woes

Medical malpractice lawsuits have a low rate of success, and although awards for compensatory damages can be large, few cases get punitive damages awarded.

Percentage of plaintiff wins* Motor vehicle liability: 63% Other malpractice: 55% Other negliglence: 46% Product liability: 44% Common carrier: 42% Property and premises: 38% Medical malpractice: 22%

Average damage awards (In millions) Product liability: $1.72 Medical malpractice: $1.60 Other malpractice: $1.54 Other negligence: $1.05 Property and premises: $0.78 Common carrier: $0.51 Motor vehicle liability: $0.32

Percentage of cases with punitive damages awarded Product liability: 7% Other malpractice: 5% Other negligence: 1% Medical malpractice: 0.7% Property and premises: 0.4% Motor vehicle liability: 0.2% Common carrier: 0%

*All data are drawn from California cases from 1995 to 1999.

Source: Rand Corp.