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California Birth Injury Lawsuit: Differences Between Hospitals & HMOs

UPDATED: August 25, 2009

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There are many differences between bringing a California birth injury lawsuit against a doctor or hospital and a health maintenance organization (HMO) such as Kaiser Permanente – and lawyers who handle these medical malpractice cases say that understanding those differences is important to achieving a favorable results.

Lawsuits against hospitals vs HMOs

J. Niley Dorit, a California attorney whose practice represents birth injury victims, explained the differences between bringing a lawsuit against a private hospital or doctor versus an HMO:

  • Lawsuits against California hospitals. There are categories of potential wrongdoers in the hospital setting. Medical care is really a team effort that’s managed both by doctors and nurses. What we see is that many times the problem is a shared one between doctors and nurses. A nurse might not provide proper, clear or timely information to a doctor or the doctor receives that information and doesn't respond appropriately.

    We look at the conduct of all of the players in that partnership. If it’s a nursing issue, then we get highly-trained nurses to consult with us. If it’s a combination of the two, then we look at the failure in communication between the different team members and consult with both independent nurses and physicians.

  • Lawsuits against California HMOs. The difference between a typical, acute care hospital versus an HMO such as Kaiser Permanente – the largest in California – is that there are distinctive features about the Kaiser system that are common to all Kaiser hospitals, but which are not used at other hospitals.

    For example, Kaiser has an internal computer network that we’re familiar with where there is essentially a second set of information about a patient’s healthcare that’s kept on computer storage that’s separate and apart from the actual medical record. It’s a back up file of sorts. Other hospitals don’t use that system. It’s an electronic system that’s unique to Kaiser. Kaiser also has a unique system where they have an audio recording of telephone calls and an internal e-mail program between healthcare providers and between the providers and patients.

    In a case against Kaiser, we tailor our request for records to include e-mails within their internal program, an internal computerized summary of the care and actual audio recordings – which on occasion have shown very, very strong evidence of medical malpractice.

    So, we take a fine-tuned approach when dealing with Kaiser cases or HMO cases because we have knowledge of how their unique systems are employed and operated. Also, in most Kaiser lawsuits, you’re required to go through a binding arbitration, which is essentially a retired judge or a senior attorney or somebody that the parties agree upon who listens to the case and makes all of the decisions about whether there was any fault. There is no jury.

    There are some additional expenses with Kaiser cases which, under some circumstances, the claimants are required to pay part of the cost of a judge. In some circumstances they’re not, but in a public courthouse, of course, the judge is paid by the state of California, not the parties.

No difference in damages

The Kaiser system operates under general California laws, so there’s no difference at all between the damage laws which apply to medical malpractice cases in terms of damages for Kaiser or non-Kaiser defendants, according to Dorit, who says that there are no different restrictions, just a different venue.

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