It's time to adjust a compensation cap set on injured patients in 1975, by politicians, that has never been updated.
California is the most progressive state in the country but has the most regressive medical negligence laws. Support the 2020 ballot measure by voting YES in 2020.
Speakers at the Initiative Launch included:
On February 2, 2014, Bree and Nelson Moreno were thrilled to welcome their baby girl Mia into the world. It had been a good pregnancy followed by a normal C-section, with no red flags at birth. Mia’s apgar scores (which indicate a newborn’s state of health) were all normal.
Like many newborns, Mia cried a lot. She wanted to be held all the time. After a week and a half, she seemed to be getting more and more cranky. When Mia was three weeks old, Bree noticed Mia was sweating a lot, and she was cold and clammy to the touch. When they put her in her crib to sleep, an outline of sweat emerged on the sheet around her body. The pediatrician told her not to worry, and instructed her to give Mia a cold bath, but Bree’s maternal instinct told her something was wrong.
By March 17th, Mia’s condition had not improved, and she had developed a fever, so they took her to the closest children’s hospital. The ER providers took X rays and CT scans. Within minutes, they gave Bree and Nelson the news that would change their lives forever.
It turned out that Mia had a large mass in her tiny chest, which was pressing on her heart, lungs and spine. Bree will never forget the first time she heard the word “neuroblastoma.” The medical providers recommended 8 rounds of chemotherapy, followed by an open surgery to remove the rest of the tumor. “It was surreal,” Bree remembers, “Like a bad dream that turns out to be real.”
On their third day at the Children’s Hospital, Mia was scheduled for two procedures, each requiring her to undergo sedation. First, Mia was transported to the hospital next door for a needle biopsy, where they took out a portion of the tumor for diagnosis. Immediately afterwards, Mia was brought back to Children’s Hospital, and sedated again, so the providers could insert a port called a “broviac” into the area around her collar bone, through which chemotherapy would be administered.
Bree and Nelson were instructed to stay in the waiting room while the port was installed. After about 20 minutes, the head nurse came in, followed by the hospital Chaplain. From the look on their faces, they knew something very bad had happened.
During the procedure to install the port, they explained, Mia’s heart “collapsed,” and her pulse dropped dangerously low. The medical providers were in the process of doing chest compressions, but it had already been 20 minutes. The chaplain encouraged them to pray for their daughter’s life.
Bree and Nelson were in shock. All they wanted to do was see their baby. “We trusted the doctors,” says Bree. “They should have known what they were doing.”
Finally, her heart started pumping again and her parents were allowed back into her room. Her heart had been compromised for almost 45 minutes. Bree recalls, “She looked terrible. Helpless and sad, with leads all over her. She had marks all over her chest, like scrapes, from the compressions. We were happy she was alive, but from that point it was really touch and go. We didn’t know if she was going to make it or not.”
Later, they discovered that the main medical provider had left the room during the installation of Mia’s port, and that they were not properly tracking her vitals. “If they had been paying closer attention, they could have prevented the cardiac arrest.”
Mia was put on a ventilator for several days until her heart was fully functioning. None of the medical providers would explain why this had happened to their daughter. Instead, she was moved to the oncology ward to begin treatment for the cancer.
After the first round of chemotherapy, Mia was sick and exhausted. Her parents couldn’t imagine putting her through seven more rounds like that. They sought out second and third opinions. A children’s hospital in a larger city nearby suggested chemotherapy was not needed and instead they suggested laparoscopic surgery to remove the tumor. They transferred Mia to this hospital, and in May 2014, the tumor was successfully removed. Three days later, Mia was already feeling better.
However, over the next several months, her medical providers noticed that Mia was not hitting her developmental milestones. She wasn’t crawling, but rather, would scoot around on her back. Her gross and fine motor skills were not where they should be for her age. After some testing, the neurologist explained that because the oxygen had been cut off from Mia’s brain for so long during the cardiac arrest, the parts of her brain that control movement were damaged, resulting in Cerebral Palsy.
Although Mia’s tumor had been easily treatable, the medical providers mistakes and negligence had terrible consequences. She was free of the cancer, but she would now be disabled by Cerebral Palsy for the rest of her life. “She would have been fine, a totally normal kid who can run and play, but they messed up and now she has this lifelong condition. They really changed the outcome for the worst, unfortunately,” said Bree.
Now, Mia is 5 years old. She needs braces on the bottoms of her legs and feet, physical therapy, occupational therapy, and speech therapy. She uses a walker and a wheelchair. “She will need care her whole life,” said Bree. “We will need a vehicle for her wheelchair. Our house is not conducive to her disabilities. She uses a gait trainer for walking. We need to build ramps.”
When Bree and Nelson spoke with lawyers about their case, they found out about a little-known California law called MICRA, which would limit their ability to recover damages for the medical negligence that caused Mia’s disabilities. MICRA was set by politicians in 1975 to limit quality of life and wrongful death survivor damages for medical negligence cases at $250,000. This law has not been updated in 45 years, not even for inflation.
Unless MICRA is changed, Mia will not be able to recover more than $250,000 for her cerebral palsy and for all she has lost in her quality of life. She may never be able to live alone, have a family, or hold a job. “Thinking about what $250,000 meant in 1975, when you think about the value it had then, compared to what it has now, does that seem fair?” Bree says. “Our daughter is going to have a lifetime of disability, and will need lifelong care. That (amount of) money is not going to go too far.”
Mia’s dad, Nelson, agrees. “Knowing that there is this cap, this limitation, it’s like having no hope. It’s like a lost cause. You don’t want to give up because that’s what you do as a parent. You fight for your kids. I will fight for Mia - whatever it takes. But it’s very disappointing because no matter what you do, it’s all about politics. It shouldn’t be that way. It definitely needs to change. We deserve better. Mia deserves better.”
As she walked into the hospital on August 1, 2012, Annette Ramirez was nervous. At age 48, she was about to have the first surgery of her life; a hysterectomy. Her husband, Rolando, took her hand and reassured her with the facts the medical providers had given them. This was a common surgery that thousands of women undergo every day, and they had performed it many times with success. There was nothing to worry about.
Annette was a young, healthy mother with two children, 6 and 12 years old. She exercised daily, ate a healthy diet and had no pre-existing medical conditions. Rolando kissed his wife goodbye and watched as she was wheeled into the operating room. There, she was given general anesthesia and fell asleep. The hospital staff explained to Rolando that the surgery would last approximately two hours, and if everything went as expected, he could bring her home the next day.
But things did not go as expected. Annette and Rolando’s lives would forever bear the impact of what happened during the next 48 hours. During the surgery, the surgeon nicked Annette’s bowel and severed her colon. Unaware of this mistake, he completed the hysterectomy, stitched her up, and sent her to recovery.
When she woke up, Annette complained of severe abdominal pain. Although a colon perforation is one of the most common issues to occur during a hysterectomy, and her pain should have raised red flags with the medical providers, they ignored her symptoms. Instead, they incorrectly diagnosed the pain as gas. They asked that she stay and extra night to monitor the symptoms due to the pain.
The next day, they instructed her to walk around the halls to try to release the gas. Annette did as she was told, but the pain got worse. That evening, the providers made a fatal error; they decided to administer an enema. Due to the nick in Annette’s colon, the enema flushed the bacteria from her bowels into her body cavity. A deadly infection spread, unchecked and unmonitored, throughout her body.
Soon, Annette began vomiting and lost consciousness. Septic shock set in. Her limbs blackened with gangrene.Suddenly her hospital room was swarming with activity. Rolando received the devastating news that his wife was in critical condition, and would need to be placed in a medically-induced coma to try to save her life.
The last thing Annette remembers is seeing her husband at the foot of her hospital bed, their eyes locked together in fear,not knowing what would become of her as the hospital staff swarmed around her.
Four months later, the week of Thanksgiving, Annette woke up. At first, all she could see was white. She had no idea where she was. Rolando was still by her side, steadfast as ever. Why wasn’t he holding her hand, Annette wondered? She tried to say his name, tried to raise her hand to gesture him to her, but she was unable to speak or move. As the fog lifted, Rolando tearfully explained what happened during the coma.
To stop the gangrene from spreading through her organs, both of Annette’s arms and her legs were amputated. She now had stumps where her arms and legs had been. Necrotizing fasciitis burned her from the inside out. She could not speak due to the trachea in her throat and she had lost all hearing in her right ear. She had been moved to a new hospital with a burn unit, where over half of her skin would be replaced with skin graphs.There had been many “code blues;” moments where it seemed as if she was going to die. Miraculously, she survived, but her previously healthy body had been destroyed.
Annette did not leave the hospital for two years. During that time, she endured countless surgeries and torturous procedures in three different hospitals. After her trachea was replaced she spoke her first words to her husband and her children. She said, “I love you guys.” They cried and hugged and kissed her, but she couldn’t hug them back.
On April 14, 2014, Rolando finally brought Annette home in the wheelchair she would be confined to for the rest of her life. Their children were now 8 and 14. She would never get back the years of her children’s lives that she missed while in the hospital; the soccer games, Christmas parties, holidays and birthdays she could not attend. Never again would her children feel their mother’s arms wrap around them when they needed a hug. Never again would Rolando walk hand in hand with his wife. Now there would be endless return trips to the hospital, prosthetics and therapies, and assisted life care procedures that would become their family’s new normal.
Every aspect of their lives had been upended. Before this, Annette haD been the Director of Alumni and Events for the University of California, Berkeley, for 20 years. She then went on to become the first Reunions Director for the University of Southern California. As an employee of USC, her children could have gone to college tuition free. Now her career was over, and the benefits that went with it were lost. During her time in the coma, Rolando had also lost his job as the executive director for a non-profit agency, due to the fact that he needed to spend so much time with Annette at the hospital. At the same time, they had to sell their home of 20 years, because it could not accommodate Annette’s new disabilities.
When Rolando consulted with attorneys during Annette’s coma, he learned about a little-known California law that would have disastrous consequences for their case. Almost 45 years ago, in 1975, politicians set a cap on the damages that compensated patients like Annette for all she had lost due to medical negligence - her ability to walk, work, move freely and be with her family as she once was – at $250,000. That limit for loss of a patient’s quality of life still stands today - exactly as it was written back then. It has never been adjusted – not even for inflation. At first they couldn’t believe it was true, but then they realized that the maximum amount their family could recover for the entire ordeal was determined by politicians four and a half decades ago.
“Our family’s pain and suffering – is that what it’s worth? It’s a slap in the face to tell me that my life is worth only that. It’s not just the horrific pain of the actual medical event, but also the injustice of this law. It’s unfathomable.”
It was the kind of accident that could happen to any child at anytime.
Like many two year olds, Steven Olsen loved climbing, running and playing. Steven was also a quick thinker like his dad, Scott, who developed software for automotive repair. His parents called Steven “wild thing” because he was very active, playful and imaginative. For his second birthday, they gave him a child’s workbench where he could play at fixing things.
Two weeks later, on February 29, 1992, the family drove up to the mountains to visit his grandmother’s cabin. After the long ride, Steven needed to burn off some energy, so his mom, Kathy, took him and his sister out for a stroll on the little path around the cabin. During the walk, Steven tripped and fell, like toddlers do every day. Steven happened to land on a stick, which pierced his mouth between his upper lip and his gums. Kathy removed the stick, but it looked like it needed some stiches, so after a bowl of ice cream to calm him down, they took Steven to the local ER.
In the hospital, the medical providers discovered the stick had scraped the boy’s sinus, leaving dirt and debris inside. They cleaned it, stitched him up, sent samples from to the lab for culture and sent Steven home early the next morning.
That should have been the end of the story. At work on Monday morning, Scott posted a sign at his desk, which joked: “Ask me about my bad weekend.” He thought the incident was over. Unfortunately, what happened that weekend would change their lives forever.
By the following weekend, although the injury seemed to be healing, Steven was tired and lethargic. His parents worried. Perhaps this had something to do with his fall? They took him to urgent care twice, and then back to the hospital, where they were seen by a different provider. Scott said, “We were just here a week ago. He had a stick in his face. Could that have anything to do with why he is so tired?” Kathy asked repeatedly, “Please do a CT scan?” But the providers said no, claiming it was unnecessary. Instead, they performed a spinal tap to check for bacterial meningitis. Two days later, they sent Steven home again, despite the fact that he was now vomiting. No one from the hospital checked the labs from his first visit. If they had, they would have been alerted to the possibility that Steven had a serious infection.
The next morning, Steven’s parents found him unconscious, with a fever of 106. Scott called 911, and the paramedics raced him to the ER in critical condition.
After denying their requests and ignoring their concerns for weeks, the ER provider said, “He has a brain abscess (ie: infection) and we believe it was from the stick injury.” Hearing this now, Scott was incredulous, because that’s what he had been asking them about all along.
Undiagnosed and untreated for two weeks, the abscess had grown, steadily increasing the pressure on the little boy’s brain. Eventually, the force became so great it herniated his brain and pushed it down into the hole where the spinal column enters the skull. The medical providers drilled a hole into the boy’s skull to drain the infection. He remained unconscious for weeks. No one knew if he would survive - or if he survived, what his condition would be.
“You trust these people to do their profession. But they never checked the labs. They never consulted with the initial doctor who cleaned the stick debris, even though his office was right across the street. They never noticed that his white blood cell count was high, which also indicated an infection,” Scott said. Now, there was nothing they could do but pray. “It was a waiting game.”
A few days later, the hospital informed Scott and Kathy their son had no brain activity and was possibly brain dead. However, this was yet another mistake; a false alarm due to a malfunctioning EKG machine.
Miraculously, Steven did survive, but he was no longer the “wild thing” who ran and climbed and squealed with delight as he played at his workbench. He would never do those things again. He was left with severe brain damage, impaired development, cerebral palsy, seizures and permanent blindness.
If not for the medical provider’s negligence, the infection could have been treated, and Steven and his family could have lived a normal life. Instead, at only two years old, Steven was sentenced to a lifetime of darkness and disability. He would never hold a job, live alone, or care for himself. He would always need help for the most basic human functions: eating, bathing, moving. Even using the bathroom would require assistance.
As tragic as the Olsen’s story was up until that point, what happened next would reach a level of injustice they never imagined could happen in the state of California. When they spoke to lawyers about their case, they were informed about a little-known state law, which would have dire consequences for their family. Set by politicians in 1975, this law caps qualify of life and wrongful death survivor damages for medical negligence cases at $250,000. Astonishingly, it stands today as it was written 44 years ago. It has never been adjusted, not even for inflation. Dismayed and disheartened, the Olsens had no option but to witness the effect of this outdated law as it unfolded in the courtroom during their trial.
For three weeks, the jury heard heartbreaking testimony from doctors, experts, and the Olsen family. They watched a video of Steven talking and laughing, before the brain injury. Then, Steven was brought into the courtroom. The jury foreman, Thomas Kerns, recalled, “we watched as he groped, stumbled and felt his way along the jury box. There was no chatter or happy laughter.”
The lawyers who represented the hospital’s insurance company argued that Steven’s blindness only merited medical expenses of $9,000, and that there were free welfare services to support Steven’s other medical needs. But the people of the jury were so moved by what happened to Steven, and so appalled by the medical negligence that caused his catastrophic brain injury, their verdict compensated Steven $4 million for actual medical expenses, and $7million dollars for his lost quality of life, for a total of $11 million dollars.
However, as soon as the jury left the room, the insurance company’s lawyers invoked the 1975 law and demanded the quality of life damages be slashed to $250,000, as the cap prescribed. The judge had no choice but to comply. Under other provisions of this law, the cost of Steven’s medical care and caretakers for daily living, his so-called “economic costs,” were also reduced. The lawyers who represented the hospital’s insurance company did not stop there. They filed several appeals, forcing Steven’s case to settle for even less.
Because of the 1975 law’s other limits on Steven’s rights, in the end he recovered less than $3 million dollars. This amount was his only compensation for medical expenses, lost quality of life, lost wages etc… from age two throughout the rest of his life, which the courts estimated to be another 58 years.
"The other side said we had been fairly compensated, but this isn’t right,” said Scott. “Starting from the beginning, it wasn’t enough.”
The jury foreman, Thomas Kearns, did not learn about the reduction of Steven’s award until he read about it in the local newspaper. He replied with a passionate letter to the editor, in which he argued against the outdated law. “Our justice system has failed Steven Olsen, by acceding to this tilting of the scales of justice by the Legislature for the benefit of two special-interest groups (the American Medical Association and the insurance industry)… I think the people of California place a higher value on a human life than this. Let us change this egregious law.”
Kathy gave up her job at Sears to take care of Steven. “We needed someone to sit up with him all night for months,” Scott recalled. For the next 20 years, Kathy drove her son to countless neurologists, urologists, orthopedic surgeons, psychiatrists and therapists. He had numerous leg surgeries, and twice had to be confined to a body cast. Although his brain would never develop beyond that of a child, Steven’s body grew into adulthood. It became harder and harder for Kathy to move him, but between Kathy and Scott, they managed.
However, on December 18, 2015, Kathy died unexpectedly at the age of 59. Although no autopsy was ordered, it is likely that decades of physical and emotional stress took a toll on her heart. Devastated by the sudden loss of his wife, Scott fell into a state of shock and despair. In addition to grieving her death, he was now his son’s sole provider and caregiver. In order to take care of Steven, he also had to give up his job of 30 years. In doing so, he lost his income, benefits, and health insurance.
Today, Steven is 29 years old. Scott bathes him, feeds him, moves him, drives him to his doctor’s appointments, administers his medications, and much more. Every night, Scott worries about what will happen to his son after he dies. Who will take care of him? Who will provide for him? And who will pay for it all?
To this day, thousands of families across California have been victimized as the Olsens were by the unjust and outdated 1975 law, which still has not been updated to account for inflation. Until it is changed, many more innocent people will be harmed. Before her death, Kathy Olsen said, “I know that this law cannot be changed for my son, Steven. But I do feel that if another child is injured like (the way he was), that he should get what he is rightfully due.” Since her death, Scott has continued the effort to change the law. “I want to try to help other people,” says Scott. “My wife is the one who did the hard part. I’m not going to stop now.”
A newly filed proposed CA ballot initiative would give injured patients more money in med-mal lawsuits.
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