When is a Medical Malpractice Award Reportable to the California Medical Board?
The California Medical Board $ 30,000 Malpractice Award Trigger
In California the $ 30,000 rule applies. Everyone knows this but frequently doctors contact our office and are puzzled that their medical malpractice award was reportable to the California Medical Board. Typically we will hear, "My lawyer said I was being dismissed and they were paying because the surgeon (other doctor) was at fault. Why am I being reported?"
The Medical Board Reporting Rule is Strict & Broad
The confusion arises because the reporting law is strict. Any medical malpractice judgment or arbitration award over $30,000 gets reported if it relates to negligence, error or omission. So to start, virtually all medical malpractice cases will trigger this provision.
The Bulk Settlement Trap
The most common trap is the bulk settlement rule. This rule applies when a single amount releases many physicians. The total award is held against each physician. It is not divided or apportioned automatically. To stay under the $ 30,000 limit the award or settlement has to specify the dollar amount for the physician who does not want to be reported. So an award of $ 31,000 that releases 100 doctors has to be reported 100 times. This is true even if 90 of the doctors had nothing to do with the patient.
Does the Malpractice Lawyer Represent the Doctor?
The next obvious question is "Why didn't the malpractice lawyer protect me?"
A medical malpractice defense attorney who is supplied by an insurance company will be protecting the insurance company first and you second. They can and should watch out for both parties but they often don't. The consequences can be severe.
What are the Consequences of Reported Malpractice Decisions
A simple medical malpractice action can lead to reporting and the court judgment can sit in the physicians Central File. The insurance company lawyer does not owe a duty to protect the physician from reporting if the settlement otherwise benefits the insurer. When a conflict between the insurer and the doctor arises, the medical malpractice attorney should disclose this conflict and the insurance company should pay for separate counsel to be retained to protect the doctor.
A simple malpractice report is not fatal but it can trigger negative events. A single report of medical malpractice will not automatically trigger a medical board investigation unless there is gross negligence involved. Business and Professions Code Sections 2234 (b) defines Gross Negligence and subsection (c) defines Repeated Negligent Acts.
Gross Negligence is an extreme departure from accepted standards of medical practice.
Repeated negligent acts is a self explanatory concept . The $ 30,000 reporting requirement will certainly contribute to action on that basis as repeated acts of negligence can trigger license suspension or revocation simply due to the fact that multiple reports exist in the doctor's central file.
Doctors Need a Second Opinion - (And Not Dr. Google!)
We recommend that any settlement be assessed for reportability. You can discuss this with your existing malpractice defense lawyer but if you have any question, ask for “Cumis” counsel (separate counsel paid for by the insurance carrier) or obtain on your own dime, a second opinion.
It is true that the basic parameters of the law are clear. The nuances of applying the law to a specific case and specific trial or resolution will often require the advice and supervision of an experienced physician lawyer. So, you can google tor AI the basics but it is best to have an actual human lawyer assist you.
Daniel Horowitz is a physician advocate who can review any malpractice case or settlement to assess your risk of Medical Board action. Dr. Mark Ravis is a physician lawyer who works with Dan so that complex medical issues are expertly addressed. Call us if we can be of assistance.