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California Caps Stifle Med Mal Award

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Irvine, CAYou might say that a young California woman who went to court seeking damages as a result of a hip surgery that went terribly wrong, won the battle but lost the war. Her attorney, Sean M. Burke, an experienced personal injury lawyer who has fought many a battle on behalf of people injured through medical malpractice, presented the facts of case, the jury understood and awarded Erica Rockabrand $2.9 million dollars for the botched surgeries that left the young woman to face a life of chronic pain.

Surgery MalpracticeUnfortunately, there is a catch in California. Awards for pain and suffering in medical malpractice suits are capped and have been capped since the law was changed in 1975.

Rockabrand will receive about a tenth of that amount because of state legislation that seriously limits payouts to plaintiffs. "When the jury realized that the award they made would be substantially reduced, they were really upset," says attorney Burke.

Rockabrand, who is just 30 years old and a PhD candidate in biochemistry at UC Irvine, had hip surgery to alleviate pain she had suffered since she was a teenager. In the course of the operation, the surgeon nicked her sciatic nerve leaving her with chronic and serious pain.

What this means for Burke's client is that, after court costs and attorney fees Rockabrand will be left with just a few hundred thousand of the almost $3 million the jury thought they were giving her. The award for pain and suffering is trimmed to $250,000 plus to help her pay for additional medical costs she may have due to do the surgery that went wrong.

Don't Juries Know About Caps?

No they don't. Despite the fact that the issue of capped awards in medical malpractice suits has received no shortage of coverage, juries seem to be unaware of the situation. And defense lawyers in these cases go to great lengths to prevent juries from finding out. "In every medical malpractice trial I have ever had the defendants come in with a motion to keep that information away from the jurors," says Burke.

Burke makes it his practice to counter that motion with one of his own. "In a lot of cases, including this one, I have an opposition that I file: I say the jurors should know about it," says Burke. "Almost every single time the judges rule on behalf the defense and agree not to tell jurors [about the caps]."

Just as the general public seems to have overlooked and are unaware of the caps in these kinds of cases, some of California's lawmakers are also unaware of it. "I was up in Sacramento one time meeting with some state legislature representatives," adds Burke, "and even some of them didn't know this, it was news to them."

The caps have already been declared constitutional in California and there is no indication that will change anytime soon.

As for Rockabrand, Burke says his client is learning to cope.

Sean M. Burke has been practicing law for 25 years. He earned his Bachelor of Arts degree magna cum laude from the University of Southern California in 1976. He graduated from USC Law School and USC Business School in 1981, with a combined JD/MBA degree. In 2005 Burke was recognized by the Orange County Trial Lawyers Association's Medical Malpractice Trial lawyer of the year.

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