Bringing A Medical Malpractice Claim against Kaiser

Medical Malp;ractice X-Ray misread

Medical Malpractice X-Ray Misread

KAISER MALPRACTICE CLAIMS

Thinking about brining a medical malpractice claim against Kaiser? There are several “Kaiser” entities in California. For Southern California these entities include Kaiser Foundation Health Plan or Health Plan, Kaiser Foundation Hospitals, and Southern California Permanente Medical Group. In Northern California these entities include Kaiser Foundation Health Plan, Inc. (“Health Plan”), Kaiser Permanente Insurance Corporation (“KPIC”), Kaiser Foundation Hospitals, and/or The Permanente Medical Group, Inc. It is important when filing a claim that you name proper entities. I will refer to these entities in this article collectively as Kaiser.

Medical malpractice claims resulting in injury or death against Kaiser are generally subject to binding arbitration. Adults and children, if they are health plan members, are subject to the contractual terms of the Kaiser arbitration agreement. As well, two California Court of Appeal decisions holds that an unborn child become Kaiser Permanente members, subject to the Kaiser Permanente arbitration contract upon birth. Therefore, birth injuries are subject to the arbitration provisions of the Kaiser contract.

The dangers of the statute of limitations, although Kaiser Permanente generally cannot be sued in the Superior Court the same statute of limitations applies against Kaiser as would apply against any other health care provider in California. The statute of limitations for medical negligence and medical wrongful death claims is contained in California Code of Civil Procedure §340.5. Essentially the statute requires that an aggrieved party (an injured person or a wrongful death claim) take action within one year of discovering a medically caused injury or death. If a claim involves a birth injury to a child then California Code of Civil Procedure §340.4 is applicable which essentially requires that a minor’s claim for personal injuries sustained before or during his or her birth must be commenced within six years after the date of birth.

Under California Code of Civil Procedure §364 before filing a lawsuit or a demand for arbitration one must send a notice of intent to sue (sometimes called “90 day letters.”) Depending upon when the statute of limitations is, a letter sent according to California Code of Civil Procedure §364 can “toll” the statute of limitations. However, there are many technical issues involved regarding letters sent following California Code of Civil Procedure §364 and California Code of Civil Procedure § 364.1. As well, the failure to give the notice does not invalidate a properly filed suit or demand for arbitration. However, it may be grounds for disciplining the attorney as stated in California Code of Civil Procedure §365BEWARE: THIS IS A HIGHLY TECHNICAL LAW IN MEDICAL MALPRACTICE CASES IN CALIFORNIA, THE USE OF WHICH MAY ADVERSELY AFFECT YOUR RIGHTS

Medical Malpractice - MRI misread

Medical Malpractice – MRI Misread

In California, medical malpractice claims are subject to a cap on general damages of $250,000 this is not just against Kaiser but all health care providers. Keep in mind that the cap on general damages is for pain and suffering and wrongful death claims only. The ability to recover economic damages are unlimited. So economic damages can include past and future medical expenses, past and future lost earnings, lost earning capacity, loss of ability to provide household services. Economic damages in some cases can be hundreds of thousands to millions of dollars depending upon the facts and circumstances involved. Our office has recovered many times, much more than $250,000 for injured claimants or families who have suffered the loss of a loved one.Rules-1-1-15

BEGINNING THE KAISER’S ARBITRATION PROCESS

Kaiser claims are currently overseen and administered by the Office of the Independent Administrator in the Law Offices of Marcella A. Bell. Their contact information is Office of the Independent Administrator, P.O. Box 76587, Los Angeles, CA 90076-0587, phone (213) 637-9847, fax (213) 637-8658 and e-mail is oia@oia-kaiserarb.com

As stated on their website the “There is no required Demand for Arbitration form. If you want, a letter to Kaiser Permanente is sufficient. Please note that it is necessary to have the words “Demand for Arbitration.” Rules 7 and Rule 8 in our Rules for Kaiser Permanente Member Arbitrations provide additional information in preparing your Demand.”.

Rules for Kaiser Permanente Member Arbitrations provides as follows regarding content: “Rule 7. Contents of the Demand for Arbitration. The Demand for Arbitration shall include the basis of the claim against the Respondent(s); the amount of damages the Claimant(s) seeks in the Arbitration; the name, address and telephone number of the Claimant(s) and their attorney, if any; and the name of all Respondent(s). Claimant(s) shall include all claims against Respondent(s) that are based on the same incident, transaction, or related circumstances in the Demand for Arbitration.”

Rules for Kaiser Permanente Member Arbitrations provides with regarding to serving the demand for arbitration as follows “Rule 8. Serving Demand for Arbitration a. In Northern California, Kaiser Foundation Health Plan, Inc. (“Health Plan”), Kaiser Permanente Insurance Corporation (“KPIC”), Kaiser Foundation Hospitals, and/or The Permanente Medical Group, Inc. shall be served with a Demand for Arbitration by mailing the Demand for Arbitration addressed to that Respondent(s) in care of:

Kaiser Foundation Health Plan, Inc.
Legal Department
P.O. Box 12916
Oakland, CA 94604

or

Kaiser Foundation Health Plan, Inc.
Legal Department
1950 Franklin Street, 17th Floor
Oakland, CA 94604

Service on that Respondent shall be deemed completed when received [EMPHASIS ADDED] .

b. In Southern California, Health Plan, Kaiser Foundation Hospitals, and/or Southern California Permanente Medical Group, shall be served with a Demand for Arbitration by mailing the Demand for Arbitration to that Respondent(s) in care of:

Kaiser Foundation Health Plan, Inc.
Legal Department
393 East Walnut Street
Pasadena, CA 91188

Service on that Respondent shall be deemed completed when received [EMPHASIS ADDED] .
c. All other Respondent(s), including individuals, must be served as required by the California Code of Civil Procedure for a civil action.
d. All Respondent(s) served with a Demand for Arbitration in the manner described above shall be Parties to the Arbitration. The Arbitrator shall have jurisdiction only over Respondent(s) actually served. If Claimant(s) serves any Respondent(s) other than an organization affiliated with Kaiser Permanente, the Claimant(s) shall serve a proof of service of that Respondent(s) on the Independent Administrator.
e. Where an order to arbitrate has been entered, the underlying court complaint constitutes the Demand for Arbitration and the entry of the order constitutes its service.”

AFTER THE DEMAND FOR ARBITRATION IS SERVED

Generally within three days of receiving notice of the Demand for Arbitration, the Office of Independent Administrator will send each party a randomly-generated list of twelve arbitrators from which to choose.

The parties can also agree on a neutral arbitrator from outside the system if the arbitrator is otherwise qualified and follows the system’s rules. The parties then have 20 days to return their arbitrator choices. The administrator then selects an arbitrator to serve on the case, based on the parties’ selections.

The arbitrator is required to hold an arbitration management conference within 60 days of being appointed. At the management conference the arbitrator and the parties set deadlines for remaining events, including the mandatory settlement meeting and the arbitration hearing date.

Finally, if no settlement is reached, the arbitrator will conduct the “arbitration.” Generally claims are resolved or arbitrated within 2 to 3 years, depending upon the complexity of the case.

THE ARBITRATION PROCESS

Medical Malpractice Surgical Errors

Medical Malpractice Surgical Errors Image: Wikimedia Commons, public domain

The arbitration process is a legal proceeding. In many ways it is a trial without a jury. The process is very similar to a lawsuit filed in Court. At the arbitration hearing, you and the other side present witnesses, including medical and other experts, and other evidence. Generally civil procedure rules of evidence basically apply in arbitrations.  The Arbitrator(s) hears the evidence and act as the judges. Arbitrators decide cases based on the evidence presented by both sides and the law. The Arbitrator’s decision is final, binding, and can be enforced in court.

A person who represents himself or herself is acting in propria persona or “in pro per.” You are held to the same standards as a lawyer in presenting your case and have the same requirements to provide expert testimony to establish your claim and your claim for damages. The Office of Independent Administrator provides a OIA Handout that explains some of the most commonly asked questions. The handout does not replace the Rules for Kaiser Member Arbitrations Administered by the Office of the Independent Administrator (Rules). Everyone is responsible for following the Rules.

In my opinion it is not a good idea to represent yourself in these types of proceedings. You have the same responsibilities as a lawyer.

It is not possible to explain the arbitration process in this article. There are books written for people who represent themselves in legal proceedings. If you are going to represent yourself I strongly recommend that you educate yourself on the process.

The sad fact is statistics show that individuals who represent themselves in these types of proceedings without the benefit of a malpractice lawyer lose 75% to 85% percent of the time!

FURTHER ASSISTANCE

If you are a Kaiser Permanente patient or member and have suffered a personal injury or the loss of a loved as the result of negligence or carelessness by one of your medical providers, you need the Law offices of Richard M. Katz. We understand the Kaiser Permanente system and we have a history of successfully representing patients and families in arbitration proceedings. Please call me for a complimentary assessment. I can be reached at 626-796-6333 or contact me through my site http://www.lawyer-personal-injury-law.com/.

THIS WEB PAGE IS AN INFORMATIONAL STATEMENT OF CALIFORNIA LAW ONLY, AND NOT FOR THE PURPOSE OF SELF-HELP.

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