Legal lessons on Ernesto's medical saga(2)

Part two.

There are other variables to be factored in: In 2010, there was, and still is, a $200,000 remedy cap in California for a victim of medical malpractice. Fraser said that the money is not worth the legal fees and court expenses a case like Ernesto would award.

In addition, the further along the case would move in the court, the plaintiff should bring a specialist, or experts, that could testify Ernesto, indeed was target of clinical and medical negligence. This item is a must show in court, if my family had a realistic chance to fight a good battle, and recover anything.

And to hire medical experts on OI is difficult, and perhaps very expensive. Legal testimonies of medical experts can run into the tens of thousands of dollars, and sometimes take several days.

I also consulted two more lawyers in the west Los Angeles area. One of them was Michael A. Dan, whose practice is located in Beverly Hills.

Attorney Dan explained in a legal letter that the plaintiff “has the burden of proof on all issues including standard of care, causation, and nature and extend of damages.”

In other words, if we were to file a medical malpractice complaint based on negligence, the plaintiff must prove the medical institution was at fault, and show, with preponderance of evidence, that the hospital breached its duty of care.

Likewise, the issue of costs, time consumption, and state laws that set caps on insurance companies, hospitals and doctors, made the case almost impossible to litigate. Attorney Dan said that unfortunately these state laws may be even further extended to the federal level.

In conclusion, I believe one way to improve the legal field in cases such as Ernesto’s, is to cajole our elected representatives in Sacramento, and press them to consider higher awards in the orders a court can issue against possible negligent hospitals, insurance companies, and medical doctors.

Another is to extend to one year and six months the statutory term that allows someone, like in my family’s case, to file a wrongful death lawsuit in the state’s Superior Court.

In addition, to improve our legal system, California needs a special duty of care mandate. Individuals who are fragile, weaker, or albeit less physically fit than average people, but are taken in anyway as they come by hospitals, should be subject to the highest medical care available in all hospitals.

Because I spent several nights at Cedars Sinai in Ernesto's room during his post-surgery days, I noticed his specialist did not visit him every day. Several resident doctors, and several nurses took important decisions, both in handling his body, and administering drugs, without direct orders from the specialist.

Sacramento leaders should set rules of higher standards of care toward these individuals, whose cases pocket the hospitals hundreds of thousands, and perhaps millions of dollars in medical bills a month.