Medical-care issues that can kill your personal-injury case

involve medical issues, and there are many traps for the unwary, particularly when the quality of the medical care is at issue. Virtually without exception, any injury case with substantial damages will become entangled with medical issues. There will always be issues of how to maximize the economic damages, usually dependent on numerous, sophisticated medical analyses. If medical malfeasance is even colorable, it will be necessary to protect the noneconomic damages from being decimated by: (1) MICRA; and (2) Proposition 51, which is (mis)interpreted in the Henry case (Henry v. Sup. Ct. (2008) 160 Cal.App.4th 440) and usually (mis)characterized by the defense. Of course, the PI defendants often will point to medical defendants or medical empty chairs to avoid blame altogether. At other times, you will be enticed to add medical wrongdoers to your case. You should generally quash these impulses to add medical defendants. It often behooves you to avoid having medical defendants, particularly if they are MICRA-qualifying medical defendants. However, it takes substantial prospective analysis and planning to avoid creating viable empty chairs, being forced into a MICRA situation unnecessarily, and to avoid medical causation arguments that may obviate totally the personal-injury claim (e.g., as a superseding cause). At other times, however, the facts will be such that the case will fail unless it is primarily a medical malpractice case. This usually occurs when there is weak liability or weak damage availability against the PI defendants (e.g., an automobile accident with no insurance coverage for the PI defendant). Making these decisions early in your handling of the case is essential to avoiding litigation catastrophes. The best decisions require an ability to recognize the potential liability issues and having knowledge of how to protect and strengthen the personal injury liability aspects of the case as necessary and appropriate. It also requires knowledge of multiple areas of law to enable you to maximize and protect your case’s damages.