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Doctors said it was just a migraine – then a friend had to save my life. Here’s why suing is pointless

It was midnight and I paced around my bedroom holding ice packs on my head. I realized, this is not normal.

I went to Sutter Medical Center emergency room in Sacramento. With tears running down my face, I told the doctor I had the worst headache of my life. I was given pain medication and sent home, diagnosed with a migraine. But I was actually in the early stages of an impending stroke.

I was only 45. I’ve worked in politics for over 20 years and at the time was the senior strategist for the California Democratic Party.

Fourteen hours later, I didn’t know my son’s name. A friend saved my life by taking me to the emergency room again. I don’t remember much for seven days. Family and friends came to my bedside. Doctors talked about making nursing home arrangements for me.

When doctors wanted to release me 10 days after I was admitted, I told them something wasn’t right. I had severe back pain for six days, and was coughing up blood. They said I should still leave. I accepted their diagnosis. Again.

In less than two days, I was back in the emergency room. The pain was unbearable and I had lost vision on my left side. Turns out I had a previously undiagnosed pulmonary embolism, a large leg blood clot and now a brain hemorrhage. I had been right. Something was wrong. Again, they didn’t listen to me.

My story, later described in a suit, isn’t unique. A friend told her doctor that for two weeks, she had experienced the worst headache of her life, and asked if it could be a stroke. She was prescribed opioids. She had a major stroke that landed her, a 31-year-old dance teacher, in a walker, dependent on the pain meds. She eventually had to pay out of pocket for the treatment necessary to end her dependence.

A recent Johns Hopkins study showed medical errors are the third leading cause of death in the U.S., surpassed only by heart disease and cancer.

My friend and I face lifetime consequences from our strokes. But a 1975 California law supported by many of the lawmakers I have looked up to all but prevents us from suing for medical malpractice.

Under the Medical Injury Compensation Reform Act, damages for pain and suffering in a medical malpractice suit are capped at $250,000, and the maximum cap is typically only awarded in cases resulting in death.

So if a child is killed by a preventable medical error, his or her life is worth $250,000. Same goes for the elderly, or a stay-at-home mom or anyone else not making a salary that can be figured into the raw, unemotional math of “economic damages” in malpractice cases.

To put this in perspective, that $250,000 cap hasn’t changed one cent since 1975. In 1975, home prices averaged under $50,000, and the minimum wage was about $2 an hour.

If the malpractice law were adjusted for inflation, the law today would cap pain and suffering damages in personal injury cases at $1.3 million dollars. But the Medical Injury Compensation Reform Act doesn’t include a cost-of-living increase. So while court and expert witness costs rise each year, the award doesn’t.

Doctors say they fear that if the cap is raised their malpractice premiums will increase. I feel the same about my car insurance, but I pay it.

Because of my profession and my privilege, I was able to find a lawyer to take my case, though I dropped the suit when I realized that the aggravation of a drawn out court fight would hamper my healing. I also knew that any award would be much less than the $250,000 cap. And if I agreed to accept a settlement, I likely would have had to sign away my right to speak out. I believe it’s important to tell my story not only for myself, but for others.

I have advantages that come with an education and friendships with people in power. If I had been a farmworker, a minimum wage worker juggling two jobs, my access to justice would have been limited.

I am one of the lucky ones. I can read, write, walk and earn a living. But I carry with me anger that’s hard to let go. Medical errors are a difficult political and social issue to discuss. We all want to believe our doctor would never make a mistake that could alter our lives.

But doctors aren’t gods, even yours. They are human. And part of that humanity is making things right.

Medical errors devastate families, especially those that have few resources and don’t have a political voice in the halls of the Capitol. People working minimum wage, people of color, and women are the primary victims of this draconian law.

Our Legislature can choose to fix the Medical Injury Compensation Reform Act at any time by passing a bill and sending it to the governor to raise or remove the cap or just let juries decide.

This change would allow doctors to practice, knowing if an error happens, they have a path to make things right. And they can start to rebuild the trust of the patients who have been harmed.

Shawnda Westly is a political consultant in Sacramento, shawnda@westlyconsulting.com.

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