Professional Misconduct | Dolan Law Firm

Medical Injury Compensation Reform Act and Medical Malpractice Cases

Written By Christopher Dolan and Casey Hultin

This week’s question comes from Pam from San Mateo:

A good friend of mine’s child recently passed away. My friend believes that a doctor’s error caused her child’s death. Do you have any advice? How can the doctor be held accountable?

Dear Pam,

I am so sorry to hear your friend is going through this. What you are describing is called medical negligence or medical malpractice. Medical error is far too common and hundreds of thousands of Americans die each year as a result. Unfortunately, in the state of California, the options for recovery for the errors of medical providers and the ability to hold them accountable is extremely limited because of the Medical Injury Compensation Reform Act of 1975, otherwise known as “MICRA”.

MICRA was signed into law in 1975 and limits compensation for what are called “non-economic” damages, including things like pain and suffering and wrongful death damages for the loss of a loved one such as a parent, child, or spouse, or other impacts on quality of life such as the loss of a limb or cognitive function. MICRA limited the maximum recovery for non-economic damages for preventable medical negligence at no more than $250,000. This amount has not changed since 1975. With inflation, the $250,000 cap now would equate to approximately $50,000 in 1975. Roughly speaking, had this cap kept up with inflation, the cap would now be approximately $1.2 million.

Medical malpractice cases are long and difficult and often require the retention of expert witnesses. Costs to successfully hold a medical services provider accountable for negligence can exceed $100,000. While there are ways to potentially recover these costs through a jury trial, doing so is time consuming, stressful, and not a guarantee. As a result, there are not many lawyers that take on these cases, nor is this often something that people potentially want to pursue because of the small amount of net recovery once litigation costs and attorney fees are paid. Many plaintiffs go through multiple years of stressful, invasive litigation in medical malpractice cases. Medical malpractice cases are more costly than other personal injury cases such as automobile accidents, because defense attorneys and the insurance companies paying for them will take as many steps as possible to whittle down the already smaller pot for recovery. Jurors who decide these cases are not informed of the cap, and only find out after the verdict that the plaintiff’s recovery is limited to $250,000.

While your friend is thinking through whether to pursue a medical malpractice case, it is important to remember that there is a one-year statute of limitations on medical malpractice claims in California. The clock begins running when the plaintiff knew or had reason to know of the medical malpractice. This determination is case specific and not always easy to determine. If you are ever considering bringing a medical malpractice case, it is important to have your case evaluated as soon as possible. Evaluation of your case by a medical malpractice attorney also often involves an initial review of all available medical records by a doctor or other expert, so gathering all the medical records from the treatment at issue as expeditiously as possible will also help.

Economic damages are still recoverable under MICRA. Unfortunately, for the death of a child or someone who is not employed, economic damages will be relatively minimal, essentially limited to funeral expenses. When the injured person survives and has ongoing medical expenses related to the doctor’s error, the injured person can also recover for those medical expenses, with some limitations.

Another important thing to note about MICRA is that MICRA does not just limit what most people think of as medical malpractice, it also impacts recovery against other health care providers such as massage therapists.

California voters will have the opportunity to change the law in the November 2022 election when the Fairness for Injured Patients Act is on the ballot. The Fairness for Injured Patients Act will adjust for inflation the maximum $250,000 compensation cap set on quality of life and wrongful death survivor damages to approximately $1.2 million. It will also allow judges and jurors to decide that compensation above the cap is appropriate in the cases of catastrophic injury or death. Jurors will also be informed of the cap. Additionally, the Fairness for Injured Patients Act will adjust the limitations on economic damages recovery for medical malpractice cases so that insurance companies cannot shift the costs back onto parties that are not at fault.

Additionally, the Fairness for Injured Patients Act will extend the time to bring a claim for medical malpractice to two years instead of one year, which is more in line with the time to bring a claim for other personal injury causes of action.

I am again so sorry for your friend’s loss. They are lucky to have a friend like you supporting them in their time of need.

A federal jury rules unanimously in favor of Chris Dolan’s clients and finds excessive use of force used by police officer Chris Johnson. A verdict of $3, 257,000.00 was awarded to plaintiffs, in Federal Court, Tacoma Washington, and against Chris Johnson and the city of Roy on September 23, 2021. This case arises from a police officer involved shooting just south of the Roy Washington city limits in February of 2019.

FOR IMMEDIATE RELEASE

UNANIMOUS JURY HOLD ROY WASHINGTON POLICE OFFICER LIABLE FOR EXCESSIVE FORCE IN POLICE SHOOTING CASE

On September 23, 2021, a Federal Jury, In Tacoma, Washington, unanimously found that City of Roy Police Officer, Christopher Johnson, violated the Fourth Amendment rights of David Rice and Seth Donahue, when he shot them as they were traveling, unarmed, in their UTV on the BNR rail tracks inside the City of Roy, a rural city of less than 1,000 inhabitants covering .49 square miles. Roy has a police force of 2, one being the defendant, Christopher Johnson. The total verdict was $3,257,000.00.

FACTS:

February 9^th, 2019, was a snowy day in Roy, located in Pierce County, Washington, about 60 miles outside of Seattle. Rice and his nephew, Donahue, had been out in their RZR UTV enjoying the 10-12 inches of snow traveling along trails, rail tracks and “tearing it up” through the city streets in Roy. Admittedly, they had been drinking beer (ten and 13 beers respectively over 6 hours) that afternoon and evening. Officer Johnson alleged that Rice, driving the UTV, committed various traffic infractions and that he tried to pull the UTV over in town claiming that he activated his lights and siren, and that Rice and Donahue took off on the railroad tracks to evade him. Rice and Donahue stated they were unaware of Johnson’s pursuit, and it was shown that the rail tracks are a commonly used UTV trails. Home surveillance video, located nearby, peripherally caught the shooting on tape. Dolan argued that “Johnson’s ego, being bruised, let him to turn off his lights and siren and race ahead to try and cut-off Rice and Donahue on the tracks at 295^th St. As Johnson approached perpendicular to the tracks, he turned off all the lights on his car “going dark” as the UTV approached. Johnson then quickly drove the police vehicle towards the tracks, turned on only his spotlight, shined it down the tracks towards Rice, and ran from his police car, weapon drawn, towards the UTV. Jonson admitted that he placed himself on the tracks, directly into the path of the approaching UTV and when the UTV didn’t stop, fired two shots into the front windshield and then two more into the passenger window as the UTV went by “fearing for his life.” Johnson was hit by the UTV before firing. Rice and Donahue testified that they were blinded by the spotlight, did not associate it with a police officer, and did not see Johnson until he shot them. Rice was struck on the right shoulder, with the bullet traveling into his chest, and also in the groin where the bullet passed through and exited his left leg. Donahue was shot in the right hand. Dolan used accident constructionists, police procedures and ballistics experts as well as the Chief of the Roy Police Department (the other half of the 2 sworn officers) and Johnson himself, to show that he violated Roy’s Use of Force and Police Pursuit Policies and engaged in an excessive use of force. Dolan and Jessup also prevailed on a Monelll Claim demonstrating the Chief and Mayor of Roy ratified Johnson’s conduct by failing to engage in an officer involved shooting inquiry and engaging in a disciplinary review of Johnson’s conduct and maintaining him on the force.

Dolan said “finally the tide is turning against police abuse. And justice under the 4^th Amendment is being secured for those victimized by abuses of police powers. There is not an increase of police abuse, there is an increase in civil prosecution of these cases largely fueled and supported by modern day evidence generated by cell phones and private surveillance cameras.”

David Rice stated “I thank the jurors for their time and honesty and their courage to hold the police accountable. Their decision vindicates me and my nephew: we were out just having fun in the snow, we didn’t threaten anyone, hurt anyone, and were just about home when he ambushes us and shot us. I’m a hunter and you couldn’t even shoot a deer this way without it being a crime. The City of Roy has lied about what happened to the press through their press releases. The Jury saw through those lies. The City of Roy needs to act to remove Johnson and he should be criminally prosecuted for his excessive use of force and abuse of power.”

Seth Donahue stated “I have been afraid of the Roy Police since the day this happened. They painted us out to be criminals when it was Officer Johnson who broke the law. We are good people who were having fun on a snowy night on rural roads, we didn’t know Johnson was supposedly chasing us and he came out of nowhere and opened fire. They need to take him off the street and take his gun and badge. Before he kills someone else.”

Further information may be obtained by contacting Chris Dolan at 415-279-2604 or Local Counsel, Doug Cloud at 253-921-1505

Written By Christopher B. Dolan and Vanessa C. Deniston

This week’s question comes from Fatima in the Bay Area:

I am a woman of color working at a big tech company in the Bay Area. I have been stuck in the same position for nearly seven years, while several of my white, male co-workers and even subordinates have been given opportunities for advancement. I’m worried my supervisor doesn’t consider me a serious candidate for a promotion, despite my excellent performance reviews. When there is a menial task to get done, it always seems to be assigned to me. At company events, my supervisor introduces me by first name only to corporate representatives, though he introduces the male members of my team using their full names. In meetings, I am frequently interrupted by male team members when I am trying to share feedback or ideas. I am hesitant to approach HR about this. I feel I will be told I have no proof and I am just imagining things. I’ve heard rumors that women in other departments have had similar experiences, but I’m not sure who they are and I’m too worried about my job security to go asking questions. Do I have any options here?

Thank you for your question, Fatima. Let me assure you that you are not alone in your experiences. What you have described, a mixture gender and potentially race-based discrimination and microaggressions, is being experienced on a grand scale throughout the tech industry by women. Men continue to outnumber women at every level and women are promoted at a lower rate than men, making up only about 38% of managers. While many companies couch themselves as “progressive” and profess to have inclusive diversity platforms, the disparities in the workplace between men and women and, disproportionately, women of color, persist.

Most recently, a group of both current and former Apple employees dissatisfied with the internal responses to their complaints of harassment, discrimination and retaliation have banded together and called for a collective exchange of stories and experiences in the workplace, spurring the #AppleToo hashtag on social media. The group’s website urges its coworkers at every level to collectively call for systemic change in the workplace, stating that,

“when our stories are collected and presented together, they help expose persistent patterns of racism, sexism, inequity, discrimination, intimidation, suppression, coercion, abuse, unfair punishment, and unchecked privilege.”

In circumstances such as yours, Fatima, there are several actions you can take to both protect yourself and connect with other women and/or persons of color with similar experiences. First, it is essential to document any incidences or circumstances you feel could be related to gender or race discrimination, including discussions with your boss regarding your interest in advancement opportunities and his response, instances of microaggressions and/or evidence of disparate treatment in the workplace. If possible, your written record should be created contemporaneously with the incidences they document and be marked with a date and time stamp. Contemporaneous records, especially those bearing a date and time stamp, are afforded more credibility than ones created after the employee suffers a termination or a disciplinary meeting. Your description should include the date, time, setting, potential witnesses involved and what was said. Be a meticulous historian and leave emotion out of it, if possible. Always assume an outsider, with no knowledge of you, your character, or your performance record, may someday be reading and evaluating your account of what occurred. While you can certainly share how the experience made you feel, resist the urge to vent.

The second step you can take is keeping your eye out for allies and sharing your experiences with them in a safe environment outside the workplace. It may feel intimidating to ask other women or persons of color if they, too, feel discriminated against or marginalized in the workplace. Therefore, it is often easier to share your own experiences with them first. If they have faced something similar, they are more likely to feel comfortable volunteering it on their own terms than they would if you questioned them about it directly. If they do end up sharing similar experiences, approaching human resources together can be a powerful approach. It is easier to dismiss one employee’s experience as an outlier, than it is to dismiss two or three similar ones, especially where the reporting structure is shared.

Nonetheless, if you find you are your only reliable witness, go to HR and report your concerns, preferably in writing. Do not operate under the assumption your concerns will be dismissed. Even if they are, it is unlawful for your company to retaliate against you for voicing your complaints about suspected gender and/or race discrimination. Your company has a vested interest in responding to discrimination claims appropriately, as a failure to investigate, only increases their liability. As always, documenting all communications you have with your supervisor and HR is an important tool to keep track of what has occurred and protect yourself should retaliation occur after filing an informal or formal complaint.

If you feel you are being harassed, discriminated against, or retaliated against because of your race or gender, contact an attorney that specializes in employment law. Making real, transformative change in the struggle against institutionalized implicit bias and overt bias, takes courage and numbers. The good news is the tech industry does not lack either.

Written By Christopher Dolan and Cristina Garcia

This week’s question comes from David K. in San Francisco:

My older sister, Lucy, is forty-one years old and suffers from physical and mental impairments. She uses a wheelchair and has trouble communicating. A couple of years ago, my parents and I made the tough decision to place her in a nursing home, as my parents could no longer care for her. We researched the facility, and it appeared to be a well-equipped facility for my sister’s needs. I would visit my sister on the weekends. I observed a male resident who seemed friendly and often engaged in conversation with Lucy during my visits. At the time, I thought it was nice for Lucy to have a friend in the facility. However, this all changed during one of my visits when I found this male resident in her room. They were by themselves, and he was lying in bed with her, which I found completely inappropriate. I immediately asked him to leave. I then spoke to one of the nurses and notified her of the incident. She apologized and assured me it wouldn’t happen again. Lucy’s nurse also stated that this male resident had exhibited inappropriate sexual behavior to other female residents. When I heard this, I was utterly disgusted. I have seen news stories about health providers who have sexually or physically abused residents. However, I am not sure what to do in this situation as the person abusing Lucy was another resident. Can the facility be held accountable for the other resident’s behavior, as they previously knew about his sexual tendencies?

David, it is terrible that you and your family had to go through this experience. As you mentioned, many news stories discuss physical or sexual abuse by health providers. However, it is the nursing home’s responsibility to ensure the safety of all residents, not only from health providers but also from other residents.

Under the Elder and Dependent Adult Civil Protection Act (“EADACPA”), codified as Welfare and Institutions Code Section 15600 et sec. A “Dependent Adult” is defined as “any person between the ages of 18 and 64 who resides in this state and who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities, or who physical or mental abilities have diminished because of age.” Cal. Welf. & Inst. Code § 15610.23(a). The law further defines “dependent adult” to include any person between the ages of 18 and 64 years who is admitted as an inpatient to a 24-hour health facility. Cal. Welf. & Inst. Code § 15610.23(b).

Based on the information you have provided, it appears that Lucy is a dependent adult who relied on the nursing home staff to protect her from harm. Under Cal. Welf. & Inst. Code Section 15610.57, “Neglect” includes the “failure to protect from health and safety hazards.”

Furthermore, “Abuse” is defined as “the negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.” The nursing facility was negligent in the care of Lucy because they failed to protect her from health and safety hazards. Despite having knowledge that the male resident had sexual tendencies, the facility did not properly monitor the resident and allowed him to continue interacting with female residents without supervision. In addition, the facility’s conduct would fall under “abuse” as defined by the EADACPA because a reasonable person in a like position would not allow the male resident to interact with Lucy without supervision and should not have allowed them to be alone in her room. Once the facility became aware of the sexual tendencies of the male resident, they should have taken precautionary measures, including monitoring his behavior and whereabouts to ensure he was not left alone with other residents he could harm.

Today’s question comes from Geraldine T. in Berkeley:

“After reading your article on unlawful harassment two weeks ago, I have a couple of questions. I work in a warehouse and I don’t want to be a “narc,” but I don’t think I should have to put up with the offensive sexual type behavior going on here. One female worker and the male warehouse foreman have known each other for years and they say all sorts of sexual stuff to each other and laugh, all the time. For example, the foreman might say “where do you want me to stack these poles,” and the female worker might answer, “you know where you can put that pole baby, anytime, just don’t let your girl find out.” I don’t need, or want, to hear this crap at work. I am fairly religious and it makes me so uncomfortable that some days I don’t even want to go to work. Whenever I say anything like “I don’t need to hear that kind of talk,” they look at me with disgust and tell me to mind my own business. With Christmas coming, I need this job to buy gifts for my kids and pay the rent. What can I do?”

Geraldine, you shouldn’t have to choose between a workplace free of sexual harassment and your job. This happens all too often. The type of unlawful behavior you describe is known as “hostile environment” sexual harassment and can involve various forms of verbal and physical conduct of a sexual nature that have either the purpose or effect of creating a hostile or offensive working environment. The conduct need not be directed towards you — your awareness and objection is enough. As such, the foreman would be considered to be harassing you, but not his female friend because she participates in the conduct and therefore does not appear to find the conduct “unwanted.”

A “hostile environment” case requires proof of three elements: (1) an employee subjected to unwanted conduct; (2) such conduct being based on sex; and (3) harassment “so severe or pervasive” as to “alter the conditions of the victim’s employment.” In cases like yours where there has been no direct impact on your work assignments or conditions, the law would require a “commensurately higher showing that the sexually harassing conduct was pervasive and destructive of the working environment”; that is, it has to be so bad that a reasonable person in your position would find it intolerable and detrimental to their working environment.

To hold an employer accountable, the employer must have had actual or constructive knowledge of the conduct and have failed to remedy it. Examples of actual knowledge include personal observation or another employee’s report. Constructive notice is found when the conduct is so prevalent that a reasonably aware employer would know about it. In cases like yours where a supervisor is involved in the conduct, the supervisor’s knowledge is imputed to the employer.

I suggest that you look at your employee handbook to see if they have a process for reporting such conduct and follow that process. Don’t worry if it requires you to bring it up with your direct manager; you can skip that. I always suggest that a person in your situation file a WRITTEN complaint with their manager’s manager and human resources or, If there is no human resources department, then with the owner. Once in receipt of your complaint, the company is legally obligated to conduct a reasonable, good faith investigation and take “prompt and sufficient remedial measures” to put an end to the harassment. You may also file a complaint with the Department of Fair Employment and Housing at their website: dfeh.ca.gov.

Many people in your situation choose to make anonymous complaints because they are afraid of retaliation. However, there are good reasons not to complain anonymously, though. First, the law prohibits retaliation, including comments, altered job assignments, bogus discipline, or termination, against an employee who has made a good-faith complaint. Second, since your foreman and his friend already know your feelings towards their conduct, they will probably guess who reported them and possibly take actions against you, which the company can claim not to constitute retaliation because the complainant did not reveal their identity. As such, it is best to let them know up front.

Finally, I suggest that you speak to an Employment Trial Lawyer, who usually works on a contingency (taking a percentage of any recovery), for further advice. My firm believes in giving the employer an opportunity to “do the right thing” and avoid a lawsuit if possible, so our employment law team often counsels employees in effectively communicating with their employer to obtain a harassment-free workplace. If these efforts fail, the employer’s insufficient response can serve to strengthen a later lawsuit.

Sexual Exploitation In The Heath Care System

This week’s question comes from Harriette in Marin: “I entered therapy about 5 years ago to deal with some issues involving sexual abuse as a minor. I had struggled with relationships and self esteem for years. I wanted to heal and move forward with my life to establish safe, healthy relationships. My therapist was a man who works with a large healthcare provider. He said it would be good for my process to work with a man, as that is where my trauma lay, abused by a relative who was a man. After a year my therapist and I became intimate.

First it was in the office during sessions, then it progressed to meetings outside including my home. He was married but said he would leave his wife. I thought this was good for me, I felt loved by a man who was stable. I became pregnant and am having his baby. My best friend pressured me for the name of the father.

I resisted. Then he stated that he could not be my therapist anymore and questioned my fidelity accusing me of sleeping with someone else. I was crushed. My baby will be born in two months. My friend says I need a lawyer. Am I at fault? He didn’t rape me, I guess I consented, but I feel foolish and betrayed.”

Can I Sue My Therapist for Professional Misconduct?

Woman at the psychotherapist

This weeks question comes from Sheila P. in San Francisco who asks, “Amy, my best girlfriend, just confided in me that she and her therapist had sex. She went to see this therapist because of sexual trauma she suffered as a child. She’s really freaked out and confused. On one hand she doesn’t want to get the therapist in trouble but on the other hand she feels like she’s being taken advantage of. I can see that it’s tearing her apart. Isn’t this illegal? What can be done about it?”

How To File A Complaint Against An Attorney

Court Gavel and Scales of Justice

This week’s question comes from Hal in Berkeley, who asks: “I went to a personal injury lawyer because I was in an accident. My lawyer told me that he had opened a claim with the other side’s insurance carrier. I got medical treatment and when it was done he told me he made a demand for settlement. He then told me he had settled my case, but he never asked me if that amount was OK. Then he never gave me any of the money, saying that it all went to pay him and my medical bills. I asked him for my file and a breakdown of where the money went. Now he won’t answer my emails or calls. What are my rights?”

Can I Sue The Seller Of My House And Our Broker For Not Disclosing Key Information?

House for Sale.jpg

This week’s question comes John K from South City who asks: “I recently bought my first home with my wife. We saw the ad for the house on line and went to an open house. We liked the house and asked the broker about the neighborhood because we wanted a safe, quiet, place to raise a family.

The broker said that it was a quiet neighborhood with older, retired neighbors. The agent acted as a “dual agent” which he said meant he could represent us both. We went through a lot of paperwork, got the loan, and then closed on the house.

After we moved in we started seeing a lot of traffic coming and going from next door. It turns out that they are selling drugs and may be running a meth lab. I spoke to the other neighbor next door and he said that this had been going on a long time and he had spoken with the broker about it. I feel ripped off, what can I do?”

Protections in Place for Faulty Fumigation

This week’s question comes from Tara P. in Hayward, who writes: “The weirdest thing happened recently. I had just bought a house out of foreclosure. I was working on the interior while living there. I went away for the night to a friend’s house. When I came home the next day after work, there was a circus tent covering my house. Seriously, a circus tent. Not only that, there were signs saying “stay back, toxic gasses in use.”

My house had been fumigated while I was out! I didn’t ask for my house to be fumigated. I called the company and they said that it was my house that was supposed to be fumigated. I said no, and they read the address. They fumigated my house on an avenue when they were supposed to fumigate a house, with the same number, a couple blocks away on a court. They said that a real estate agent had paid for the fumigation. I am against the use of pesticides and chemicals. I told them to take the tent off my house but they said they couldn’t for three days until the chemicals dissipated.

Thank God I had dropped my kitten off at the vet’s for boarding. They said that they didn’t have signed paperwork as the job was phoned in by a Realtor they have worked for before. I had to go to a hotel until my house was untarped three days later. I had to buy some work clothes and a pair of shoes as my clothes were all sealed up inside the tent. Since then I have thrown away all of the food in my pantry, sent my clothes to the cleaners and I am having a green company come in and do a top to bottom cleaning. I told the fumigators that I wanted to be compensated for this inconvenience and expense, they said that they were going to give me the fumigation for free. This is not acceptable. What rights do I have?”

Medical Injury Compensation Reform Act and Medical Malpractice Cases

Rice v. City of Roy: A Police Shooting Incident Case

You too, Us too: The Strength in Numbers