On this episode of Justice Team Podcast, Brandon Simon leads a discussion on the street fighter mentality of medical malpractice cases with Jennifer Johnson, Ben Ikuta and Michelle Hemesath. Give it a watch and hear what they have to say about MICRA caps, punitive damages and intentional torts. It’s doctor’s orders.
Jennifer Johnson, Jennifer Johnson Law
Ben Ikuta, Hodes Milman, LLP
Michelle Hemesath, Hodes Milman, LLP
Speaker 1 (00:11):
Brandon Simon (00:30):
All right, welcome to this episode of the Justice Team Podcast. I’m your host, Brandon Simon, one of the Simon brothers. And today we’re talking about all things Med-Mal. I don’t think we’ve done a Med-Mal podcast before, so this will be a long time coming. So we’ll do some introductions. So to my immediate right is?
Jennifer Johnson (00:48):
Brandon Simon (00:49):
Jennifer, why don’t you introduce yourself?
Jennifer Johnson (00:51):
All right, so my name is Jennifer Johnson. I have a very creatively named law firm, The Law Office of Jennifer R. Johnson. I’m a former ICU nurse, now a lawyer, was a defense lawyer. And I often say what distinguishes me from other personal injury and Med-Mal lawyers is I can also give an enema and start a IV.
Brandon Simon (01:11):
Jennifer Johnson (01:13):
Brandon Simon (01:15):
And you recently were a Top Gun recipient winner. Were you not for pro SETLA?
Jennifer Johnson (01:21):
Yeah, I was. I mean, I never really sought to get an award, it wasn’t a bucket list thing, and I almost wanted to turn it down because I thought, “This isn’t why I do this.” But it was a great honor and it made a huge difference in my career. I’m really grateful.
Brandon Simon (01:38):
That’s great. So to my left, introduce yourself Ben.
Ben Ikuta (01:43):
Ben Ikuta. I can lead lean back, right?
Brandon Simon (01:45):
Yeah. I think the mic will pick you up.
Ben Ikuta (01:47):
You can hear me? Ben Ikuta, I went to law school at Hastings, graduated 2008. Did Med-Mal defense for a lot of years, got sick of working on the dark side for insurance companies. I beat Dan Hodes in the case, so he called me, offered me a job. Joined his firm about five years ago and, yeah, I specialize or I focus my practice in Med-Mal.
Brandon Simon (02:14):
And all three of you, and Michelle we’ll introduce you in a second as well. But all three of you used to do defense work, right?
Michelle Hemesath (02:20):
That’s right, yeah.
Brandon Simon (02:21):
Okay. Michelle, introduce yourself please.
Michelle Hemesath (02:23):
Oh, Michelle Hemesath. And I think that Ben forgot to mention that in May of this year, he was made a named partner-
Brandon Simon (02:32):
Michelle Hemesath (02:32):
… so I work at Hodes Milman Ikuta. We met on the defense side and then he stole me away about six months ago and so I’ve been at his firm since then.
Brandon Simon (02:47):
All right. So we don’t do Med-Mal at my firm smart.
Ben Ikuta (02:51):
Brandon Simon (02:52):
Simon Law Group [inaudible 00:02:53].
Ben Ikuta (02:52):
Brandon Simon (02:54):
And the reason we don’t is because it’s hard. So you’ve been doing this for quite some time Jennifer, tell us why don’t these topnotch attorneys that you see … Well, I don’t want to … we don’t … I’m not patting ourselves in the back.
Jennifer Johnson (03:10):
Brandon Simon (03:10):
But I mean, not everybody should be doing Med-Mal. Why doesn’t everybody do Med-Mal? Why is it so difficult?
Jennifer Johnson (03:17):
I mean, Med-Mal is really a calling for me. I mean, it’s more than a way to make a living. It’s more than a way to put food or money on the table. I mean, it’s what I’m meant to do. But that said, every single case is a street fight.
Jennifer Johnson (03:36):
Every single case you have to just be prepared that you will force them to settle the case. It’s because of a number of reasons, but limitations on attorney fees, the Med-Mal cap. I mean, I bet I said this a hundred times if I’ve said it once in the last year. To do Med-Mal plaintiff work in California, you have to not be greedy, you have to be really passionate about justice, and you have to be a little crazy. Now those two qualify. I don’t know if I qualify in that third prong, but they definitely do.
Brandon Simon (04:11):
Yeah. So I mean this … And we actually had Nick Rowley maybe a year ago talking about MICRA and the cap and trying to get it lifted. And so Ben, can you talk a little bit more about the MICRA cap, the general damages cap, the attorney cap. I mean, why these sort of almost barriers to entry for plaintiffs’ attorneys who wanted to do Med-Mal? Tell us about how it works in the Med-Mal world.
Ben Ikuta (04:39):
Yeah, sure. So the cap is a cap on noneconomic damages of $250,000. It was passed in 1975, has not risen a cent for inflation since then. It makes it so hard. It really does.
Ben Ikuta (04:58):
And what a lot of lawyers don’t understand is that it’s not an insurance limit, right? If you have a $250K plus limit in an auto case, there’s still incentive for the insurance company to settle. You can still put pressure on them, so potential bad faith case there, right? If the damages exceed $250,000.
Ben Ikuta (05:17):
In Med-Mal, it’s a hard cap, it’s an absolute hard cap. And so the insurance companies they know the worst case scenario, they know that. And so they will never pay $250,000 on a $250,000 case because there’s no reason for them to do so.
Brandon Simon (05:31):
Yeah, “If that’s the most I have to pay-
Ben Ikuta (05:33):
Brandon Simon (05:33):
… why do I need to pay it right now?”
Ben Ikuta (05:35):
Exactly. And they’ll fight every case just to dissuade us and other lawyers from taking cases in the future. So every case, like Jennifer said, is just a dog fight, it’s tough. And I’ve heard a lot of complaints and from my general PI guys about low ball offers. We don’t get offers.
Brandon Simon (05:52):
Yeah, I was going to say.
Ben Ikuta (05:53):
We don’t get offers in Med-Mal cases.
Michelle Hemesath (05:55):
Ben Ikuta (05:55):
So when you combine that with the fact that people like doctors.
Brandon Simon (05:59):
Ben Ikuta (05:59):
Juries don’t feel qualified to judge doctors or their discretion and it just makes it very difficult to win cases.
Brandon Simon (06:07):
I mean, you say you don’t get offers. I mean, how … In our world, I mean, a personal injury firm and we’re a trial firm, we try, I don’t know, non-COVID world maybe two dozen cases a year. We still settle 98, 99% of our cases. Is that how it works in Med-Mal when you’re the plaintiff’s attorney? I mean, how often are you settling cases? Do you have to go to the mat all the time, Michelle?
Michelle Hemesath (06:33):
So I would say that while you don’t settle cases, it’s you don’t settle cases, pre lit. There’s definitely cases that settle after you’ve filed a lawsuit, after you’ve beaten an MSJ, after you’ve taken expert depositions. It’s just they force you to put in all of this money first. Because those costs, unlike in a PI case, those are coming out of the net and then your attorney’s fees are off that gross. So not only are you getting hit by this $250,000 cap, and by the fact that attorney’s fees are structured based on the amount, you’re getting hit because those costs are coming out and then your attorney’s fees are after those costs.
Jennifer Johnson (07:19):
Can I just jump in? Because to the point … And Michelle’s making such a great point, because we actually were just talking amongst ourselves how many times have you settled a case pre lit? And I have been a lawyer for 29 years and yesterday I got paid on the first case that I ever settled in the pre-litigation phase in a Med-Mal. And 100% of my practice has been Med-Mal almost my entire career.
Brandon Simon (07:45):
Jennifer Johnson (07:45):
And this adjuster … It was a hospital in the Inland Valley, wrongful death of an 82 year old, Brandon. I sent a 364 letter, which the theoretical reason is to incentivize early settlements. In reality, I mean, does that ever happen guys?
Brandon Simon (08:03):
Jennifer Johnson (08:04):
No, okay. So the adjuster from Pennsylvania, who works for the company that owns this hospital, sends me an email and says, “I’d like to settle this pre lit.” And I literally ran down the hall and I was like, “They want to settle pre lit.”
Jennifer Johnson (08:19):
And they ended up … And when I talked to her in negotiating, she said, “You know what? We’re not even worried about this case. I looked at this case, I realized it’s California. You know, you guys have MICRA. I’m not worried about y’all.” And I’m like, “Really? We have MICRA. I’m so glad you’re telling me, I didn’t know about that.” But I mean … And they ended up paying $225,000. But in my entire career, it just doesn’t happen.
Brandon Simon (08:42):
Wow. Yeah, I mean, so Ben I think you mentioned it. One of the other things is people like doctors.
Ben Ikuta (08:49):
Brandon Simon (08:49):
Nobody wants to sue doctors. Especially in today’s climate where the healthcare workers … I mean, my wife’s a nurse, JJ was a nurse. I mean, people don’t … They’re there to help people. And so you have tough … You have an uphill battle and they know, that the insurance company knows that.
Ben Ikuta (09:03):
Exactly, yeah. I think the statistics show that I think 85% of all cases that go to trial are defense verdicts.
Jennifer Johnson (09:12):
In Med-Mal, yeah.
Ben Ikuta (09:12):
Yeah. In Med-Mal. And that they know that, and that really leads to just no offers. And you asked the question before about, “Well, how do cases settle?” We have to be extremely selective. I mean, that’s really the answer. We only take 2% of cases that come in the door. Even though there are great cases we turn down that will never get filed, where there’s egregious malpractice, where someone dies due to preventable malpractice, those cases just go away because of the cap.
Brandon Simon (09:42):
Yeah. And something that I kind of lose sight of a lot. I say the word cases a lot and sometimes you forget, especially when you’re sitting behind … Me, I’m not talking to you. You’re sitting behind a computer screen looking at a case file, looking at these medical records, “I don’t want to take this case.” These are people. These are people who have been injured because of no fault of their own. They should have recourses and, theoretically, there’s a system in place where you can get recovery. But it’s set up to where you shouldn’t be able to. It’s set up for you to fail.
Ben Ikuta (10:17):
Exactly. I mean, our average trial costs probably $100,000. And so if we take a case, a $250,000 max case-
Brandon Simon (10:24):
Ben Ikuta (10:25):
Our attorney fees in that would be $60,000, the client would get maybe a $100,000 max.
Brandon Simon (10:29):
And you’re not getting costs on top of the $250,000?
Ben Ikuta (10:32):
Brandon Simon (10:33):
Ben Ikuta (10:33):
And it’s just such an unfair system where we can’t economically take cases like that. We just can’t. We’d go bankrupt. So a lot of righteous cases never get filed.
Jennifer Johnson (10:44):
One thing too, if I can just jump in there, is like if somebody comes to you, Brandon, with a case where there was an accident, somebody’s injured and there may or may not be a police report, there’s probably going to be a case there. I mean, I would imagine.
Brandon Simon (10:58):
Jennifer Johnson (10:58):
I don’t do PI, I’m scared of it, so I don’t know. But in our cases, sometimes I just feel so badly because people send me 10 cases and nothing’s a case, nothing’s a case. I mean, we have to vet our cases so carefully.
Jennifer Johnson (11:14):
And so one thing I would say to the general PI lawyer that doesn’t do this area of law, or maybe just dabbles in it, you have to understand that we just have to be so selective. And just because there’s a big injury or just because there’s what looks great negligence or a bad result, oftentimes that does not equate to a case. And so I mean, I agree with Ben’s stats in maybe 2% of the cases we look at.
Ben Ikuta (11:46):
Can I jump in one more point? Another reason why cases don’t settle in Med-Mal is because unlike in an auto case, doctor consent is required to settle a case. And that’s because settlements over $30,000 have to be reported to the medical board and it can impact their license. So a lot of doctors, particularly the bad ones, the ones that already have-
Brandon Simon (12:09):
Ben Ikuta (12:09):
… a black mark on their record-
Jennifer Johnson (12:11):
Ben Ikuta (12:11):
… they would prefer to roll the dice and go to trial [inaudible 00:12:13].
Brandon Simon (12:13):
Especially with, I mean, 85% chance of-
Ben Ikuta (12:16):
Brandon Simon (12:17):
And another thing that, Michelle, I’ll ask you is in our world, thankfully in a place in the personal injury world where collateral source rule shouldn’t come into play. I mean, we’ve taken cases up on appeal and we’ve set a pretty good precedent where you can choose to treat on a lien, you don’t have to through your health insurance, and that stuff comes out. A spine surgery is very expensive and we’re allowed to go to trial and say, “Hey, we need two or three spine surgeries in the future. Not on insurance, you’re not allowed to talk about insurance, million dollars.” That’s not what happens in your world, right.
Michelle Hemesath (12:57):
Right. So another terrible part of MICRA, which is actually a collection of these different laws not just the $250,000 cap, is that insurance comes in. So if, let’s say, Anthem Blue Cross paid $10,000 for the past medicals, Anthem Blue Cross is not entitled to get that $100,000 back. So you can most certainly put in evidence of it, but the jury gets to know that Anthem paid that money. Now if it’s someone like Medicare or Medi-Cal, then they have a lien, they’re entitled to reimbursement. But for future medical, so that’s a way to bring up the value of a Med-Mal case. What are the future medicals?
Michelle Hemesath (13:38):
Well let’s say you’ve got a baby that’s been injured and requires care for the rest of that child’s life. Well insurance now comes into play there and the defense, when I was on the defense side, started hiring these insurance specialists to talk about, “Well, the ACA requires everybody to have insurance. And so what would it cost for this medical plan and for this medical care through that medical plan?” And so you’ve now taken a life care plan that might be $10 million and that is now significantly less because we’re looking at what’s the cost of premiums-
Brandon Simon (14:14):
Michelle Hemesath (14:14):
… and the max out of pocket.
Brandon Simon (14:16):
And when you’re in trial and you’re arguing … And this is why it shouldn’t come in because it turns a trial into a trial into a trial. And that’s why it doesn’t come in most of the time in personal injury world. But are you allowed in your world to argue the sort of level of care?
Brandon Simon (14:34):
I mean, this is Medicare or these are the Medicare costs. If you’re giving me future medical care, why shouldn’t I be allowed to have the best medical care? Why should I only be allowed to take … Why are you giving me future medical care that only provides state funded doctors? Why can’t you give me the best care? Why can’t you give me $100,000 for this surgery and I can go through cash pay? Are you allowed to make those arguments at trial?
Michelle Hemesath (14:58):
I mean, you can most certainly make them, but I think you have to … What is the jury going to think-
Brandon Simon (15:03):
Michelle Hemesath (15:03):
… when they’re saying you can get this top of the line PPO plan that allows you to go to basically most doctors-
Brandon Simon (15:11):
Michelle Hemesath (15:11):
… you can go to almost any hospital? And they’re going to think, “Well, what’s the more reasonable thing? You might as well just take this platinum PPO plan and you’re going to get all the care that you want through these specialists who are taking this plan.”
Jennifer Johnson (15:27):
Brandon Simon (15:28):
So we’ve spent, I don’t know, 15 minutes talking about how terrible Med-Mal is and why nobody should do it. So, I mean, I would to like encourage some people coming out of law school or who work on the defense side to do medical malpractice. So why do you do it, Jennifer?
Jennifer Johnson (15:49):
I’m so glad you asked. I’ve thought about that a lot. Again as I referenced earlier, for me it’s a calling. I mean, I come from a family of nurses and my dad was a minister. I come from a family of people who’ve dedicated their life to the service of others. And so that’s kind of my mindset for my nursing background. And I just find that the most meaningful life is in service to others. That said, you have to pay your bills.
Brandon Simon (16:17):
Jennifer Johnson (16:17):
And you can’t spend $60,000 on a case that’s worth $100,000. But for me, I just find when I started my firm in 2012 people told me, “Do not say you do Med-Mal, don’t say that.” And so I would take some PI cases and I would get so much anxiety because I felt I didn’t really know what I was doing. I wasn’t passionate about them. Yeah they settled quickly, but I didn’t feel like, “Somebody needs to do something about what happened here.”
Jennifer Johnson (16:47):
And I know there are those PI cases, but I’m not the Simon Law Group and so I wasn’t getting those big cases but the smaller cases. And so finally I just realized you know what? Everything I’ve done from being a nurse, to being a defense lawyer, to working at the firm that the predecessor firm was Dan Hodes and Jeff Milman’s prior firm where Ben’s their partner and Michelle works, I just felt this is what I’m supposed to do.
Jennifer Johnson (17:18):
Yeah, it is a street fight. Every case is a street fight, every case I have to just beat them into submission pretty much. But I can help clients who are often going through the absolute worst thing they’ve been through in their life. And I’m sure Michelle and Ben would agree that most of the clients we represent because of the cases we have to take, the kinds of cases we have to take are going through the worst thing that they’re going through in their life.
Jennifer Johnson (17:45):
We can flip that on its head, do something good. Not only for those people, but we can bring a purpose out of this pain that these people are going through. And we can also send a message that what happened here is not okay. And my clients really get behind that, “We can find a purpose to the reason we lost this baby.” “I can find a purpose to the reason I’m paralyzed as a result of malpractice.” And so for me, it’s just so incredibly rewarding and it’s my passion and I’m going to keep doing it.
Brandon Simon (18:22):
Well I didn’t expect to almost cry.
Jennifer Johnson (18:26):
You don’t know me.
Brandon Simon (18:26):
Yeah, yeah, yeah. Ben, what is your … I mean, everyone that I’ve ever spoken to that does Med-Mal, you need to have … Not that you shouldn’t have a passion in anything you do, but there seems to be a little bit more of a personal connection and almost need to do this sort of work?
Ben Ikuta (18:46):
Yeah. Honestly, I love all of my clients. I really do, they’re just wonderful. Because we’re so selective in our cases, we end up with just the best clients. And sorry, I’m thinking how to answer that question. I apologize.
Brandon Simon (19:04):
I mean, people that you want to fight for. I mean, it’s just-
Ben Ikuta (19:08):
Absolutely, yeah. And on top of that, the medicine’s so interesting too. It’s really fascinating and it’s easy to work hard for clients like ours, it really is. So, yeah.
Brandon Simon (19:20):
Michelle Hemesath (19:21):
Well, I would say that I did medical malpractice defense work before I switched over. And I love the medicine, it’s fascinating, it’s interesting. But I would see sometimes cases that came in and I was like, “This is wrong.” But we would find one doctor to review it and get a negative review, and then another doctor to review it and get a negative review, and third doctor to review it and then finally get a positive review. And you’re like, “This doctor is a terrible doctor that should no longer be in practice.”
Jennifer Johnson (19:52):
Michelle Hemesath (19:53):
And I don’t want to be the person that’s protecting those doctors. I want to be the person that is making those doctors answer for what they’ve done. And so that’s why I decided that this was what I wanted to do. It’s not easy and it’s definitely not as lucrative as the PI cases, but I’m hoping that I’m making a difference.
Brandon Simon (20:14):
So I mean, we’ve been fighting the MICRA cap since it came into play pretty much. I don’t know if that fight’s going anywhere. I mean, I don’t know if you have any insight to it. But it is there and you have been dealing with it, especially the $250,000 generals cap. Have you found creative ways to … Because the jury’s not even allowed to hear that there’s a cap, right?
Jennifer Johnson (20:39):
Brandon Simon (20:39):
You tell them, “Hey, I want $10 million. This baby is paralyzed. A jury’s give you probably whatever you want.” But they don’t know that there’s a cap there. Is there a creative way to use that to your advantage or to get above that? And Jennifer you’ve mentioned to me last week-
Jennifer Johnson (20:57):
Brandon Simon (20:57):
… punitive damages, something creative ways. So how have you been able to maximize value on Med-Mal cases despite that cap?
Jennifer Johnson (21:04):
Well we talked about this and this does not … It definitely doesn’t happen in every single case. So there’s no question about that. But I think it happens more than I used to at least recognize. The fact that you can actually, under a part of the MICRA scheme under CCP 425.13, you can actually bring a motion to seek punitive damages if you have reckless outrageous behavior, if you have fraud, if you have grounds for intentional towards or punitive damages.
Jennifer Johnson (21:39):
And I think that in the category of maybe shameless self-promotion, I think I’ve won six of those motions in the past two years and I have one pending right now. And defense lawyers, they go bonkers, they absolutely hate it. Mediators will tell you, “This is not going to help you settle your case.” It’s like, “Yes, it does.” It puts incredible pressure on the defense.
Jennifer Johnson (22:01):
And basically it’s a motion that is very time sensitive, so you have to bring it within nine months of your first trial date. Now in COVID, that’s easier. But I mean, in these cases that I won Top Gun for, I won punitive damages in all three cases which were consolidated against all three defendants. And my hair was literally on fire to get that filed in a timely manner because I knew it was a punitive damage case. And the defense just had a complete and utter unified defense of stonewalling. And I had to do 20 motions to compel to get the basic discovery to even allow me to bring my motion in the first place.
Jennifer Johnson (22:43):
And what I would say is as long as your expert will go along with you and sign a declaration that meets the requirements of civil code 3294, either 1C1 or if you have the fraud portion of it, then it’s almost impossible for the defense to defend that because it’s almost a reverse MSJ.
Jennifer Johnson (23:05):
The judge is not supposed to weigh the evidence so that … And Ben’s actually had good success in this too, where once you get your motion on file, if you’re expert is with you, the defense tries to make it an MSJ like, “Oh, well there’s a travel issue.” “No, no it’s not that kind of motion.” It’s like like they … The judge cannot weigh the evidence if you’ve made your prima facie case and you’ve met that burden, you should win that motion. And again, it puts incredible pressure and it also raises that MICRA cap.
Brandon Simon (23:40):
And Ben, that’s something that you have been doing or have done at your firm as well?
Ben Ikuta (23:45):
Yes. I mean-
Brandon Simon (23:46):
I mean, then give us an example of maybe what that would entail to be able to allege something like that. You messing with medical records or assist a habit of doing the same type of mistake? I mean, what are we talking about?
Ben Ikuta (23:58):
Yeah. So section 425.13 requires a substantial probability of prevailing on the punitive damage claim. It’s the same exact standard at least language of the motion to get pretrial financial discovery. But the standard is, frankly, a lot easier. If you can just show enough evidence to meet that standard, you can add the punitive into the complaint.
Ben Ikuta (24:23):
Examples of cases. I had a case where it was granted where a doctor with an interesting medical board history of having sex with patients and leaving people to die on the operating table, with my client did a liposuction and he perforated the bowel in four separate places.
Ben Ikuta (24:45):
The patient came to him with clear signs of a bowel perforation, like his stomach was inflated like he was pregnant. He had a temperature, he was sickly, he looked like about to die. Doctor said, “Oh, you’re fine. Go home.”
Ben Ikuta (25:01):
He goes to the hospital where the doctor on staff says, “Oh my gosh, this guy’s in really bad shape. Let me call the surgeon up and see how he’s doing.” Calls the surgeon up and says, “Hey this guy’s in really bad shape. Can we transfer him to a hospital where you’re at, where you have privileges at?”
Ben Ikuta (25:18):
Well, of course this doctor had no privileges at any hospital because he was such a terrible doctor with a bad history. He said, “No, don’t transfer him to my hospital. He’s fine, this is an expected result of surgery. Leave him be blah, blah, blah.”
Ben Ikuta (25:31):
And they left him for two days while he had just literal feces just going through his entire system, became extremely septic. They opened him up, discovered this absolute mess, had to basically remove all of his stomach muscle, had to cut out feet and feet of his intestines, and he ended up hospitalized for three months. That would be an example of a case, right?
Brandon Simon (25:56):
Yeah, I hope so.
Jennifer Johnson (25:58):
Right, yeah [inaudible 00:26:00].
Ben Ikuta (26:02):
So the short answer is frankly you need to have egregious facts.
Brandon Simon (26:04):
Yeah, I mean-
Ben Ikuta (26:04):
You really do.
Jennifer Johnson (26:05):
Brandon Simon (26:06):
But what’s crazy to me is if you can’t get punitive damages, everything that guy went through is capped. The pain, and suffering, and the inconvenience that he had to go through is capped at $250,000.
Ben Ikuta (26:22):
Exactly, right. Let me tell you the end of that story, which is really tragic. He had insurance, I settled that case for $250,000. So the point of the motion is to get the $250,000.
Brandon Simon (26:33):
Jennifer Johnson (26:33):
Ben Ikuta (26:34):
The point of the motion’s not to get more than $250,000 because otherwise I wouldn’t even get that, right? So obviously the doctor, he wouldn’t consent to settlement. But now with the motion and now with the-
Jennifer Johnson (26:44):
Ben Ikuta (26:44):
… allegations of punitive damages in the complaint, now his personal assets are at risk. He had to consent and that’s how you get the $250,000. So yeah, it really is tragic.
Michelle Hemesath (26:56):
Brandon Simon (26:56):
Michelle Hemesath (26:56):
… and gloom, yeah.
Brandon Simon (26:58):
Yeah, I mean it’s … I mean, I know plenty of colleagues that do Med-Mal, but hearing the stories that people have to go through because of not only negligence, but just egregious. If that case was in personal injury world, that case would be worth $20 million probably.
Jennifer Johnson (27:20):
Mm, millions, yeah.
Brandon Simon (27:23):
I don’t understand how we can continue to have that cap, and have MICRA, and everyone’s fine with it. Our blue state, our Democratic governor, and everyone’s just, “It’s fine.”
Jennifer Johnson (27:37):
Brandon we were talking about this and I think for the jury to really go along with us, especially like … I mean, it makes a difference where we are, whether Orange County, or LA, or what have you. But I think jurors have to believe, “What happened to them could happen to me.” I think they have to. And sometimes to believe that what happened to Ben’s client, I don’t want to … I can’t … Psychologically it’s too painful to go there.
Brandon Simon (28:03):
Jennifer Johnson (28:03):
Or if somebody’s baby dies, you just don’t want to believe that this could actually happen to you. And one of the situations where I won punitive damages an orthopedic surgeon was literally infecting his spine patients with his own infection that was well known. So you don’t want to believe that these egregious facts could actually happen to you. So I think that’s part of why MICRA stays as it is or it has to this point.
Brandon Simon (28:37):
Wow, yeah. It’s literally like … You hear stories and even though I’m in sort of this profession or at least adjacent profession, it’s still unbelievable the stuff that happens and nothing really changes. So what about intentional acts, intentional torts? Is your experience with that, Michelle, in Med-Mal world?
Michelle Hemesath (29:01):
Yeah. So I mean, you can allege obviously intentional torts like battery, or if there’s a sexual assault component to it, or fraud. But those I think you, obviously, need to understand are also not covered under these policies. So yes it can, in theory, increase the value of your case, but it’s that those aren’t covered claims.
Brandon Simon (29:28):
So give me an example. I mean, I know a classic one from law school is they did a surgery that wasn’t consented to. Isn’t that a classic form of a battery?
Michelle Hemesath (29:36):
Yeah. So maybe-
Brandon Simon (29:38):
But that’s not covered under Met-Mel claims?
Michelle Hemesath (29:39):
No, no, not. But then you’re still looking at a $250,000 cap, right?
Brandon Simon (29:43):
Michelle Hemesath (29:43):
Because what’s covered is the negligence aspect of it-
Brandon Simon (29:47):
Michelle Hemesath (29:47):
… and it’s covered under the migrant claim. So I mean, the real ways to increase the value of your case is really looking at what the economics are on your case.
Brandon Simon (29:57):
Yeah, that’s what I was going to ask. I mean, when you’re looking at cases coming in the door, there has to be a pretty high price tag on medical costs moving forward. And even if there is, I mean, you’re still dealing with insurance, and Medicare rates, and all that, so it has to be a pretty substantial injury to justify taking the case, right?
Michelle Hemesath (30:19):
Right. So, I mean, we’re looking at unfortunately how much money do this person earn for a living? So are they a breadwinner? That’s an important factor. Is there a big lost wages claim? So if you’re really young or really old then most of the time you’re looking at that $250,000. Or-
Brandon Simon (30:40):
And this is almost discriminates against people who are low income? I mean, it doesn’t almost, it does-
Michelle Hemesath (30:44):
Brandon Simon (30:45):
Michelle Hemesath (30:45):
It does, yeah.
Brandon Simon (30:45):
Michelle Hemesath (30:46):
Jennifer Johnson (30:46):
Brandon Simon (30:46):
So their value of their life is much lower than … If you’re a Hispanic day laborer who has 10 kids and you’re the breadwinner for that family, your life isn’t the same as if you’re a doctor earning six figures and you’ve lost your income. That case is worth substantially more when it shouldn’t be.
Michelle Hemesath (31:07):
That’s true, yes. It’s discriminatory most certainly against minorities. It’s terrible. MICRA affects not just the young and the old, but it affects blacks and Hispanics. Because when you’re looking at, “Well, what is this person going to earn for the rest of their life?” Well, I mean, unfortunately when we look at cases, we’re looking at, “Oh, it’s a successful white male who’s earning six figures.” I mean, that’s [inaudible 00:31:38] you’re like, “Okay, that’s probably a case I want to take because the economics on it makes sense.”
Michelle Hemesath (31:42):
The other way that economics makes sense are if there’s future medical care. Yes, I mean, there’s the issue with the health insurance, but still those are cases that we’ll look at more closely because those future meds, it’s an argument at least to say, “This life care plan is worth-
Brandon Simon (31:58):
Michelle Hemesath (31:59):
… $10 million.”
Brandon Simon (32:01):
So I mean, MICRA’s enacted in ’74 is that right?
Ben Ikuta (32:04):
Jennifer Johnson (32:05):
Brandon Simon (32:08):
It hasn’t been overturned yet, I mean, what’s it going to take? What’s the current status? I mean, how close are we to getting some relief?
Michelle Hemesath (32:18):
What it’s going to take is I think everybody talking to their friends, their family, their legislatures. I mean, talk to everybody you know about it and tell them why this has to be changed. It’s not just that lawyers are greedy and they want more money, which is what the insurance companies will tell, you it’s that these people are underrepresented because of unfortunately this law and they deserve more than what they can get. And a baby’s life shouldn’t be worth less just because they’re a baby.
Michelle Hemesath (32:48):
And Nick Rally has spearheaded this initiative that’s coming up for a vote in November of next year. I believe the act is called The Fairness For Injured Patients Act or Injured Victims Act and that should, I hope, past this time.
Michelle Hemesath (33:09):
There’s a documentary that just came out called Never Events and so there … I mean, talk to your friends, talk to your family members, talk to other healthcare providers and explain to them that this isn’t to raise the healthcare costs, this is to provide justice for loved ones, for people.
Brandon Simon (33:31):
As if healthcare costs could get any higher, yeah.
Michelle Hemesath (33:34):
Jennifer Johnson (33:35):
But I mean, in Prop 46 in 2016-
Brandon Simon (33:39):
Jennifer Johnson (33:39):
… we tried the same thing. It’s my understanding that the bill was not the best bill. It had some undesirable portions. But I think I’m pretty good information, Michelle and Ben correct me if I’m wrong. But I believe that between Kaiser, Doctors Company, NorCal, each of the insurance companies or a number of them put up a minimum of $10 million to … Am I remembering correctly?
Ben Ikuta (34:07):
That’s exactly right, yeah.
Jennifer Johnson (34:07):
Ben Ikuta (34:08):
Cap, yeah all of them. $10 million each.
Jennifer Johnson (34:10):
Yeah, right, to defeat this.
Ben Ikuta (34:11):
Just ran constant ads.
Jennifer Johnson (34:13):
To defeat Prop 46. Am I remembering the right number-
Ben Ikuta (34:17):
Jennifer Johnson (34:17):
… for 46? So, yeah.
Brandon Simon (34:22):
So, I mean, we’re getting close to the end here. But, I mean, if you were to … Somebody’s listening who’s coming out of law school or-
Jennifer Johnson (34:30):
Brandon Simon (34:30):
… is now out of law school who’s practicing and maybe not doing this line of work but wants to start doing this line of work. There’s been a lot of, like Michelle said, doom and gloom sort of barriers to entry. What would you tell those people who … I mean, you’re in it because you want to do it. I mean, you’re not here because you’ve been forced and this is a paycheck, right? You’re doing this line of work because this is what you to do and this is what you’re passionate about. So what would you tell these people get into Med-Mal, do it?
Michelle Hemesath (34:59):
I would tell them come and talk to me. I would be happy to mentor you. Talk to another attorney that does Med-Mal because the last thing that you want to do is be the person that is taking this case and doesn’t know what you’re doing.
Michelle Hemesath (35:14):
When I was doing defense work and writing reports, the first section is on the parties. And I would put in there whose plaintiff’s council, and a blurb on them, and especially whether or not they did medical malpractice. So what I would say is it’s so important to find someone that will mentor you and I am happy to do it. I love talking to law students. I’m the president right now, Women Lawyers of Long Beach. And so if you are interested in it, I would be happy to just sit down and talk with you about it.
Ben Ikuta (35:45):
Yeah, I completely agree with everything Michelle said. The vast majority of my referrals come from lawyers who have taken that one Med-Mal case and just taken an absolute bath on it and got crushed-
Jennifer Johnson (35:57):
Ben Ikuta (35:57):
… and lost a bunch of money. And I promise you, I’m not begging for work here. Just give me a call and I can tell you if it’s a good or bad case, if it’s a case worth pursuing. Michelle’s absolutely right, call one of us.
Jennifer Johnson (36:12):
Totally agree. And I would just say that I saw firsthand this summer at what we call the tort fork because we all office at the same building, 9210 Irvine Center Drive. But we hosted interns this summer. We had four separate interns and Michelle and Ben were just amazing mentors to our law students. I participated and it was just really amazing. And the comments from those budding attorneys who are law students was like, “Man, our perception is so different of Med-Mal.”
Jennifer Johnson (36:45):
Because I mean, I think they had that common perception about Med-Mal or even PI that we’re chasing ambulances. But when you see that we’re putting our money where our mouth is and we’re literally giving access to justice for people that would not otherwise, these marginalized people, that would not have the ability to get into court if we didn’t actually put out $100,000 per case or whatever it takes to get them justice. And so I would just echo what Michelle said; contact one of us.
Jennifer Johnson (37:20):
And by the way, I mean, we often co-counsel with each other because … I don’t know if it’s because … I’d never even contemplated this or even the question until this moment. But you know, there’s not this cutthroat competitive nature among our firms. We co-counsel.
Jennifer Johnson (37:37):
If somebody comes to Ben’s firm and my firm and we realize we’re both talking to the same person, we’ll give them two for one. It’s like that. I mean, we support each other. And so to a young lawyer, it’s like try it out, see if you like it before you actually do take that step and start your firm and actually put yourself on the line and your assets for the chance to bring cases.
Brandon Simon (38:03):
Yeah, and I mean, another thing is I assume, that the machine you’re going up against when you’re going against defense firms who represent doctors, I mean, I assume you’re probably getting outgunned 10 to one in terms of manpower. It’s probably not an easy … Like you said, a street fight when … Am I underestimating it?
Jennifer Johnson (38:23):
Not at all. I mean, in these cases that I settled last year, at the end I ended up bringing in co-counsel. But I would show up at motions and it would be me on the plaintiff’s side and one motion, they literally had six lawyers from three major firms-
Brandon Simon (38:39):
Jennifer Johnson (38:39):
… against me. And actually I’ve shared this especially with Michelle, because as women we’re often underestimated. And I love it when they say, “Oh, you’re inexperienced.” Or it’s just you against them. I love that because that can play to our advantage.
Brandon Simon (39:02):
I think we’re almost done, but I am curious. I want to … I mean, assume you have friends on the defense side that do defense work, Med-Mal work. Ben was a little more hesitant. Michelle [inaudible 00:39:15].
Michelle Hemesath (39:15):
Brandon Simon (39:15):
I mean, I’m curious how they feel about the system and how it’s set up. I know there’s probably some bias because they are presenting doctors and they want to get these doctors clear their name, blah, blah, blah, but there has to be some recognition on their side. Maybe behind closed doors that the system’s not fair.
Ben Ikuta (39:35):
The firm that Michelle and I were at previously, back in the mid ’90s, what happened was this. Let me start all over. What happened was it was a big Med-Mal firm and one of the major partners there spoke out in favor of repealing MICRA, overturning MICRA. And the day that happened, Kaiser and these insurance companies had trucks go to that office and say, “Put all of your files in this truck and drive them over to this other law firm.” And that’s how the firm that Michelle and I used to work at, the defense firm, really established itself because the trucks were all driven there. They know-
Brandon Simon (40:11):
Ben Ikuta (40:11):
Yeah, literally. Trucks literally-
Jennifer Johnson (40:13):
Ben Ikuta (40:13):
… driven over-
Jennifer Johnson (40:13):
I didn’t know that.
Ben Ikuta (40:13):
… there with these, yeah. The Carroll Kelly Firm was started that way. And they know and they will tell us behind closed doors that absolutely MICRA’s just awful and that it needs to be overturned. And they want it to be overturned too because their rates haven’t gone up either.
Brandon Simon (40:28):
Yeah, right. Yeah, yeah, yeah.
Ben Ikuta (40:29):
So they want it overturned as well. But of course they can’t say that publicly.
Michelle Hemesath (40:34):
Right, right. But I also think that if they get some negative reviews, they also realize that they have to settle a case. And when I was on the defense side and I had a terrible, terrible case where a baby died during a delivery, I told plaintiff’s counsel who’s actually Christa Raimey, who’s a member of JHQ, that I felt so bad for her, and I was very sorry. And we ended up resolving that case because it was just so egregious.
Michelle Hemesath (41:05):
So I know that there are some defense attorneys that are out there that have a heart and they feel like what has happened is wrong. And sometimes they’re like, “This doctor has hurt too many people, I’m not going to represent them anymore.” I mean, it’s rare. It happens.
Brandon Simon (41:22):
Ben Ikuta (41:25):
Those the most heartbreaking. I mean, the child death cases, we just get them all the time, every single day we get a child death case, or referral, or an intake.
Brandon Simon (41:34):
And that case is worth?
Ben Ikuta (41:35):
Is worth maximum.
Brandon Simon (41:36):
Maximum of $250,000 and you have to spend in time and money to get that. So it’s really not even worth $250,000?
Ben Ikuta (41:41):
And to be clear, the $250,000 cap applies no matter how many wrongdoers there are. And so what happens is if you sue the hospital and don’t sue the doctor, the hospital will blame the OB-GYN and vice versa. If you sue only the doctor, they’ll blame in the hospital. So you have to sue both and now you’re going against two different law firms and-
Michelle Hemesath (41:58):
Ben Ikuta (41:59):
… will just paper you to death.
Michelle Hemesath (42:00):
[inaudible 00:42:00] and you need two different experts, right? Because you need to have an obstetrician and then a nurse because it’s liability based on both of their conduct. So I mean they just get very expensive.
Brandon Simon (42:13):
So you’re spending probably $50,000 to $60,000 on that case, conservatively?
Ben Ikuta (42:19):
Brandon Simon (42:20):
Your attorney’s fees are … They’re capped, but what are they? I mean, what’s going to the family at the end of all of that fight? Probably two and a half years worth of suing that hospital over the death of their unborn child that is clearly wrong. What does that family get? $30,000?
Ben Ikuta (42:36):
The hypothetical answer is maybe $100,000 if you win the case. The real answer is typically zero because we can’t take that case. We can’t take that case financially.
Brandon Simon (42:46):
Ben Ikuta (42:47):
So no one will take it.
Brandon Simon (42:48):
Ben Ikuta (42:49):
I mean, it’s just … I made it a personal mission to take a lot more of the child death cases just because they’re so heartbreaking. And when you see the same hospitals involved over, and over, and over again with women who would be literally better off delivering a baby in the bathtub at home versus going to the hospital and being pumped full of medication, not being monitored, leading to extreme fetal distress. It’s just absolutely heartbreaking, so.
Brandon Simon (43:18):
Well on that note, geez.
Ben Ikuta (43:22):
Sorry. That’s a [inaudible 00:43:23] downer, I’m sorry.
Brandon Simon (43:25):
I mean, it’s definitely … I have friends that do Med-Mal, I don’t have these type of conversations with them. So it’s definitely a bit eye opening to see you guys are actually real attorneys. We see-
Michelle Hemesath (43:39):
So I think that the best way-
Brandon Simon (43:41):
Michelle Hemesath (43:41):
… to end this though would be that the positive thing out of today is to realize all of these negative things and share that.
Brandon Simon (43:51):
Michelle Hemesath (43:51):
Since you didn’t know this, but that means so many other people who aren’t lawyers don’t know this. And if it could be shared amongst your friends, your colleagues, your neighbors and tell them why this law’s so terrible and maybe it will be changed.
Jennifer Johnson (44:09):
Yeah, and the other thing is that, I mean, I know I often stay in touch with clients for years after, I mean, years after their case is resolved. And I know, Ben, I know you do the same thing I know. And I’m sure you do too, Michelle. I mean, it’s almost like you create a bond when you go through something like this and when you fight hard for justice for these people.
Jennifer Johnson (44:33):
And I mean, I don’t know, this is why I went to law school. I mean, I’m up for a fight and it’s not a fair fight. But there is just something really rewarding about just being willing to be that street fighter and take on this very difficult area of the law and to just really fight for justice for these victims.
Jennifer Johnson (44:55):
And if MICRA doesn’t change, I’m still going to keep doing this kind of law. I love it and it’s extremely rewarding. And when you see the change lives, that people that we can represent, that we can literally make a difference, it does become worth it, at least in my book.
Brandon Simon (45:17):
All right. When’s the ballot measure? Is it next … Is it a ballot measure next year?
Michelle Hemesath (45:22):
It’s in November with-
Brandon Simon (45:23):
Michelle Hemesath (45:23):
… the election. November 2022.
Brandon Simon (45:25):
Okay. So anyone that’s watching this between now and then, I mean, you’re going to see a lot of ads, I’m sure vote no-
Michelle Hemesath (45:32):
By the other side.
Brandon Simon (45:33):
… on, yeah. Voting on it and trial attorneys are greedy and everything. And so hopefully any time that you see a family member or a friend who doesn’t know how to vote on that, I mean-
Michelle Hemesath (45:44):
Talk to them.
Brandon Simon (45:44):
…. watch this vid- … Send this YouTube video to them. I mean, show them that this is what goes on behind the scenes and hopefully that can make a difference. So thank you so much for coming. Thank you Jennifer, thank you Ben, thank you Michelle.
Jennifer Johnson (45:59):
Brandon Simon (45:59):
This was really insightful. It’s definitely eye opening for people who don’t do this type of thing. So thank you so much. And Hudson will kill me if I don’t say there’s no sleep till justice. So thank you so much.
Ben Ikuta (46:12):
Thank you Brandon.
Jennifer Johnson (46:12):
Michelle Hemesath (46:12):
Jennifer Johnson (46:12):
We appreciate it.