Dental malpractice case spotlights outdated California law

Sep 20, 2009

When 7-year-old Ryan Volkmuth died three years ago during a dental procedure at a Palo Alto, CA, clinic, his parents couldn't find a lawyer to take on their malpractice case because of the state's cap on malpractice awards, according to a story in the San Francisco Chronicle.

In California, $250,000 is the most that can be recovered for "pain and suffering" in a medical malpractice claim. The limit was set 34 years ago by the passage of the Medical Injury Compensation Reform Act (MICRA) of 1975. However, the law leaves unlimited the amount plaintiffs can seek for other damages such as medical costs and lost wages. It also doesn't restrict punitive damages, but such awards require proof of a conscious disregard for the safety of a patient and are difficult to obtain in medical claims.

While proponents say the MICRA law has helped hold down insurance costs, prevented unreasonably high jury verdicts, and kept doctors from leaving the state to practice elsewhere, critics say the $250,000 cap hasn't been adjusted for inflation in 34 years.

For the Volkmuths, it is the reason their case was turned down by most of the dozen medical malpractice attorneys they consulted, according to the story.

"They basically said we can't do this," Wayne Volkmuth told the Chronicle. "They said we believe you have a strong case and we could prevail at trial, but in economic terms it makes no sense for us to take it on."

He and his wife eventually found an attorney, Erik Peterson of San Francisco, to sue the clinic and its staff for wrongful death and negligence. The case is set to go to trial October 26.