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Vaage Law > Practice Areas > Medical Malpractice > Kaiser Medical Malpractice

Kaiser Malpractice Lawyer in San Diego


Cases 4 Causes Podcast: Listen to Bob Vaage on the Cases 4 Causes Podcast as he talks about Medical Malpractice Arbitration.

Podcast Transcript

Landon Harlan:
So this is an interesting subtopic of medical malpractice, which I feel is a term that gets thrown around the country quite often. And in particular the element of arbitration in California. We have a medical system called Kaiser and while some of those who sign up for Kaiser may not know it, but if they do have an issue of medical malpractice, they go into Kaiser arbitration. I understand you recently had a case known as the Vargas case and that was your client. I was hoping that you could tell us a little bit more about that [because] we understand there was some groundbreaking points.

Bob Vaage:
Sure. I represented Jayden Vargas and his mother, Sonya Vargas. Jayden suffered a pretty severe life-altering brain injury as a result of multiple acts of malpractice by Kaiser caregivers over the course of more than a week. A couple of the interesting things about the case is that Mrs. Vargas, who absolutely just won't quit, she's been taking care of her son full-time for nine years, absolutely refused to give up on a potential case against Kaiser and they sought out reviews by more than 15 law firms who specialize in medical malpractice cases to review the case. And all of these firms rejected the case before they came to us. They came to us about five months before Jayden's statute would run on his eighth birthday with about 65,000 pages worth of medical records that we had to go through and glean out key information. And then we had to have it reviewed by an expert to confirm what our thoughts were about the case.

So it took an exceptional amount of time and effort just to even determine whether or not there was a case before we could undertake it. We then filed the action against Kaiser in the system that we're gonna discuss, probably took between 35 and 40 depositions of Kaiser doctors, nurses, and other personnel retained 10 expert witnesses. And one of the unique things about the case for the first time in my career, not just with Kaiser but in any medical malpractice case, we had so thoroughly worked up the case and knew it so well that when it came time to take Kaiser's expert depositions leading up to the arbitration, Kaiser conceded both the issues of negligence or liability and the issue of causation and went to arbitration strictly on the issue of damages. And that was the first time that ever happened in my career. Defendants in medical malpractice cases, sometimes concede liability, sometimes concede causation, but almost never concede, both, particularly in a case like this, where they understood that we were going to put $30 million in economic damages on the board. So that was an unusual aspect of the case. It went to arbitration. The arbitrator awarded about $26 million to Jayden Vargas and the case subsequently resolved.

San Diego Kaiser Malpractice Arbitration Attorney Fighting for Justice

Medical malpractice can happen anywhere, anytime. It is the third leading cause of death in the United States. When we are sick or injured, we don’t expect to suffer further injuries due to the medical care we receive, but the sad truth is this happens on a daily basis.

In Southern California, the healthcare system known as “Kaiser” is made up of three entities: Kaiser Foundation Hospital, Southern California Permanente Medical Group (SCPMG), and Kaiser Foundation Health Plan.

For its business model, Kaiser uses gatekeepers to control costs. These gatekeepers can be nurse practitioners or primary care physicians, who control referrals for testing, radiology imaging, and specialists. In the outpatient setting, the majority of Vaage Law’s Kaiser medical malpractice cases involve failure to diagnose, failure to order proper tests/scans, or failure to refer to a specialist. In the Kaiser hospital system, medical malpractice generally stems from:

  • Emergency physician negligence (failure to admit a patient)
  • Surgical negligence
  • Hospitalist / attending / ICU physician negligence, and
  • Nursing negligence.

Busy nurse’s station in a modern hospital setting

What is a Kaiser Arbitration Agreement?

Most medical malpractice cases are resolved through a lawsuit in court. However, as part of the enrollment in the Kaiser healthcare system, each patient signs an agreement requiring members to forfeit their rights to a jury trial for medical malpractice, and instead, submit to the arbitration process. Rather than presenting the claim in the courtroom in front of a judge and jury, the parties present their case before either a panel of three arbitrators or one neutral arbitrator.

The Kaiser Arbitration System is managed by the Office of the Independent Administrator. One interesting web page at the OIA is the “Disclosure Table About Arbitration Awards Received in Past Five Years – Sortable.” You can see the amount the parties are claiming, the monetary awards or settlement (if any), names of attorneys, and neutral arbitrators. This information is mandated by California Code of Civil Procedure section 1281.96.

How is the Kaiser Arbitration Process Started?

If you believe you or a loved one were injured due to medical malpractice committed by Kaiser, you may initiate an arbitration proceeding. This is done by submitting a “Demand for Arbitration” and a $150 fee to the relevant Kaiser legal department – this depends on the location of the Kaiser operation. In Southern California, the Demand is mailed to Kaiser Foundation Health Plan, Inc., Legal Department, 393 East Walnut Street, Pasadena, CA 91188.

The Demand for Arbitration is similar to a Complaint in a conventional lawsuit, as it sets forth the alleged violations and proposes an appropriate legal remedy. There is no specific form or special filing paperwork associated with a Kaiser Demand for Arbitration. Typically, mailing a letter will suffice. However, the Demand for Arbitration must usually require vital information such as:

  • The nature of the violation and claim being brought
  • The amount of monetary compensation being demanded
  • Contact information of the injured party or their attorney
  • The names of all the Kaiser entities that are believed to be at fault

Even at this early stage, formulating a Demand for Arbitration requires precision and accuracy in the statements. It is highly recommended that you reach out to a Kaiser malpractice arbitration attorney for assistance in getting the claim started.

How Many Arbitrators Are There in Kaiser Medical Malpractice Arbitration Proceedings?

Generally, for disputes involving $200,0000 or less, the arbitration proceeding is heard by a single arbitrator. For cases involving more than $200,000 the arbitration may be heard by two-party arbitrators and one neutral arbitrator. The claimant/patient chooses a party arbitrator and Kaiser selects its party arbitrator. The cost of the party arbitrator is borne by each party and the cost of the neutral is shared equally by the parties.

Claimants who are entitled to select a Party Arbitrator under these Rules may agree to waive this right by signing a Waiver of Party Arbitration form, which will make the arbitration before a single neutral arbitrator. In that case, Kaiser will pay for the cost of the neutral if the claimant also agrees to waive any objection arising out of payment by Kaiser of the neutral arbitrator’s fees.

We at Vaage Law have found that generally party arbitrators side with their party, leaving the neutral arbitrator to make the final decision. In most cases, it makes sense to waive party arbitration and move forward before a neutral arbitrator paid by Kaiser.

You need an attorney who knows the rank and strike system, who the best neutral arbitrators are, and how to push your case through the Kaiser arbitration system.

How is the Neutral Arbitrator Selected?

Once a Kaiser medical malpractice claim is initiated, the OIA will send a list of neutral arbitrators to the parties. These arbitrators are randomly selected by the OIA, and the parties are expected to come to select a preferred arbitrator. The parties also have the option of selecting a neutral arbitrator who is not on the list.

If the parties cannot or will not agree on the arbitrator, the parties are permitted to remove four names from a list and rank the remaining arbitrators in order of preference. The OIA will then assign an arbitrator based on those rankings.

The selection of the neutral arbitrator is a vital step. You need an attorney who knows the rank and strike system, who the best neutral arbitrators are, and how to push your case through the Kaiser arbitration system. Although supposedly neutral, some arbitrators either favor Kaiser or historically tend to award less in damages.

What Should You Know about Kaiser’s Medical Records?

Kaiser healthcare providers rely on electronic medical records (“EMR”) within its HealthConnect system. The problem we see with EMRs is threefold:

First, EMRs were originally designed for billing purposes. That explains why some of the dropdown choices for a specific diagnosis or therapy don’t make a lot of sense. It’s like those t-shirts you get on fan days at baseball games – the same one-size-fits-all shirt is handed out to an 80-lb teenager and a 250-lb adult. You make it work, but it doesn’t really fit. That’s how EMRs work. While information is at a clinician’s fingertips, it’s not always accurately explaining what’s going on with the patient.

Second, as a shortcut, doctors and nurses often cut and paste from past notes. It’s a lot faster than typing up a new note. This creates another problem that we call “anchoring bias.” Once a bad or incorrect diagnosis is entered into the EMR, it’s perpetuated throughout each subsequent record. One doctor may have mistakenly noted that you have a heart condition when you don’t. Now every subsequent doctor you see will think you have a heart condition, which affects their decision-making about your care. This is anchoring bias.

Third, what you receive as a “copy” of your electronic medical record is not the way a healthcare provider sees your record on a computer monitor. All of the text may be there along with lab results, radiology reports, etc., but you’re not seeing the interface as a healthcare provider would when he or she is making a critical decision about your care. How many drop-downs or screens does an emergency department doctor have to click through to obtain your referral information?

Electronic medical records can be a fast and efficient way for a healthcare provider to learn about you. However, it can also be an Achilles’ heel. It’s important that your attorney be very familiar with EMRs, and if it’s a Kaiser negligence case, then familiarity with Kaiser’s EMRs is critical.

If you or a loved one were injured due to negligence at a Kaiser facility, you need an attorney that knows the ins and outs of the Kaiser arbitration process. Contact Vaage Law Firm to schedule a consultation to learn how we can protect your rights.

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What Has to Be Proven When Suing Kaiser Permanente for Malpractice?

As with most medical malpractice claims, the injured party needs to prove that Kaiser was negligent in rendering their treatment. This involves proving that:

  • The patient was owed a professional duty of care;
  • Kaiser breached this duty of care in some manner;
  • The breach of the duty was the cause of the patient’s injuries; and
  • The injuries resulted in damages that can be measured and calculated.

Healthcare providers like Kaiser must always provide treatment within the standard of care; this means they must apply the same level of skill and knowledge that a similar provider would reasonably utilize in the same circumstances. If they fail to exercise the appropriate standard of care, and that failure causes measurable injury to the patient, it may be considered medical malpractice.

An example of this is where doctors are required to properly clean and prepare a surgery site prior to performing a procedure. If they fail to follow the proper cleaning standards, and the failure causes injury to the patient, there may be a case for medical malpractice.

Proving what the standard of care is and whether it was breached can be a complex matter that requires the explanation of an expert witness. At Vaage Law firm, we have the experience to handle such matters and have access to the top medical experts who can assist during trial.

What Can Be Recovered in a Medical Malpractice Arbitration Against Kaiser?

In a medical malpractice arbitration against Kaiser Permanente, the injured party can still recover the same types of damages as other forms of medical malpractice cases. This includes both economic and non-economic damages

Economic damages are losses that can be quantified due to the injuries the patient sustained. These can be recovered in a Kaiser malpractice arbitration, and may include:

  • Past and future medical expenses
  • Loss of past and future earnings
  • Loss of household services

Non-economic damages are made up of the value of abstract losses that the injured party has sustained. This may include such losses as:

  • Pain and suffering
  • Emotional anguish
  • Loss of enjoyment of life
  • Loss of companionship of a loved one

In California, the Medical Injury Compensation Reform Act of 1975 (MICRA) placed limits on the amount of non-economic damages in all medical malpractice cases, including Kaiser arbitration proceedings. Under this law, non-economic damages are limited to a maximum of $250,000. However, there are no limits on the amount of economic damages that a person can recover in Kaiser malpractice suits.

Proof and calculation of damages is a complex aspect of arbitration in medical malpractice cases. The amount of damages recovered often depends on the skill and experience of the attorney handling the case. Thus, it’s important to select an attorney who understands how to best maximize the damages recovered in Kaiser arbitration hearings.

Doctor doing administrative work at their desk

Can the Results of a Kaiser Arbitration Proceeding be Appealed?

In most cases, a Kaiser arbitration award may not be appealed or overturned. The results of these proceedings are intended to be final, and the awards carry as much authority as a final judgment would be in a conventional trial.

There are rare circumstances where the results may be contested, such as where the arbitration result was obtained through fraud or corruption. We are aware of one Kaiser arbitration award that was reversed because of undisclosed communications between Kaiser’s counsel and the neutral arbitrator and allegations of failure to disclose grounds for disqualification. The Fourth District Court of Appeal reversed the arbitration award. These situations are rare, and the remedy in such instances is often to hold another arbitration proceeding.

Contact a Kaiser Malpractice Arbitration Lawyer

Kaiser medical malpractice arbitration proceedings are a highly technical and specific type of legal action. They involve many minute details that are different from a normal civil court trial. The arbitration hearings require the knowledge and expertise of an attorney who has hands-on experience dealing with Kaiser, neutral arbitrators, and the overall process. A Kaiser arbitration lawyer can provide guidance, beginning with the Demand, and following all the way through to completion of the damages award calculations.

For successfully arbitrating a Kaiser case, Attorney Bob Vaage and his associate Beth Teixeira were presented once again with the Outstanding Trial Advocates Award for 2020 by the Consumer Attorneys of San Diego (CASD). The 2020 President of CASD wrote:

“CASD and its Board of Directors recognize that it takes tremendous courage, fortitude, and hard work to successfully take cases through trial and arbitration. We also believe that your success helps not only your client, but also the entire community. Your award is truly outstanding.”

Case Results

Our track record and case results are evidence of the hard work and determination we apply to every case. Read how we have helped Kaiser patients in the past:

  • $5,000,000 – Kaiser Arbitrator Awards Damages to Stroke Victim

Kaiser doctors failed to timely diagnose a developing carotid artery dissection resulting in a massive stroke and complications from disseminated intravascular coagulation leading to bilateral, below-the-knee amputations.

  • $4,950,527 – Kaiser Arbitrator Awards Damages to Brain Injured Teen

Kaiser healthcare providers failed to recognize a dislodged endotracheal tube, leading to an anoxic brain injury in a 17-year-old stabbing victim.

  • $3,469,778 – Kaiser Arbitrator Awards Damages to Partial Paraplegic

Kaiser doctors failed to timely recognize and treat a thoracic disc herniation, leading to partial paraplegia, loss of bowel and bladder function.

  • $1,489,568 – Kaiser Arbitrator Awards Damages for Excessive Traction

Excessive traction by Kaiser orthopedic surgeon during shoulder surgery caused a permanent brachial plexus injury to a woman’s arm and dominant hand.

If you believe you have a Kaiser medical malpractice or wrongful death case, contact Vaage Law at (619) 338-0505 for your free consultation.









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Medical Malpractice/Negligence

$25,300,000 - Force Feeds Cause Bowel Perforation

In utero, J.V. was diagnosed with a congenital twisting of his bowels called atresia. A few days after birth, he had surgical repair at Kaiser Sunset.



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