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As a reader of this blog would know most personal injury cases arise out of car accidents. Other frequent means by which people can be injured due to the negligence of another party are slip and falls, dangerous or defective products, etc.

Although not strictly a personal injury case, most San Diego personal injury attorneys consider medical malpractice to fall under the general banner of personal injury law. Many personal injury lawyers also practice medical malpractice law.

Specifically, medical malpractice, is a case against a health care provider for treatment that falls below the standard of care accepted for medical practitioners in their community and causes damages to the patient.
The practice of medical malpractice law in California is governed by the Medical Injury Compensation Reform Act, or "MICRA" as it is commonly called. This Act was passed in 1975 to regulate medical malpractice cases. The Act is also in effect in a number of states around the country.

It is not the intent of this blog entry to give an exhaustive treatise on MICRA, but rather to familiarize the reader with some of the highlights of the legislation that govern the prosecution of medical negligence cases from my perspective.

If one is the victim of medical malpractice one is able to collect, in addition to medical expenses, lost wages, and other special damages, a maximum of 250 thousand dollars in "general damages" or pain and suffering/emotional distress. No matter how serious the injury one is limited to this amount for general damages.

Attorney fees are also regulated on a sliding scale that decreases as the amount of the recovery increases. Further, the costs of prosecution..such things as the costs of retention of expert witness, depositions, etc are deducted from the settlement/award prior to the calculation of attorney fees whereas in the typical personal injury case the custom and practice in the community is for attorney fees to be calculated as a percentage of the gross recovery. The lay person may think that regulation of attorney fees and costs is beneficial to the consumer but, in fact, the opposite is the case.

By regulating the amount of fees an attorney can charge, the manner in which they are calculated, and placing a limitation on the amount of general damages, it has become far more difficult for the victim of medical malpractice to find an attorney to take their case. The result being that many medical malpractice victims cannot find counsel as often medical malpractice cases cannot be prosecuted in a cost effective and profitable manner. It is not uncommon for me to speak to a prospective medical malpractice client who has spoken to numerous attorneys trying to find representation. Hence, in my opinion, much medical malpractice does not get prosecuted.

Of course, discouraging medical malpractice cases was one of the primary objectives of MICRA, as well as limiting just compensation to victims. It is also worth noting that the primary provisions, including the limit on damages, has not changed since MICRA was enacted over 30 years ago!

Most personal injury attorneys can answer your specific questions as to how MICRA would apply in the individual case. If you have a question about MICRA, or personal injury law in general please consult your local personal injury lawyer who can give you the specifics as to how your situation is impacted by the law.