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State: Calif. Fitzpatrick: Medical Malpractice and Workers' Compensation Subrogation in the Golden State: [2019-09-12] |
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One of the quirks of California workers’ compensation law is that insurance carriers cannot subrogate against medical malpractice lawsuits. The issue is codified in California Civil Code section 3333.1, which states in relevant part as follows:
The Civil Code specifically states that a third-party payer, which workers’ compensation is considered, cannot subrogate in medical malpractice suits. The purpose of Civil Code section 3333.1 was to reduce skyrocketing health costs by lowering overall judgments, which would in turn reduce the cost of malpractice insurance. The goal at the time was to protect the California health care delivery system. The fact that the statute effectively grants a double recovery to a plaintiff employee injured via malpractice was more of a side effect of the initial goal of the legislation, which was again to reduce doctors’ costs. In any event, Civil Code section 3333.1 bars a workers’ compensation insurance carrier from asserting a lien against an individual employee’s medical malpractice recovery and bars a carrier’s right to file a subrogation complaint against a health care provider for medical malpractice. Please note that although a workers’ compensation insurance carrier cannot pursue subrogation in a medical malpractice case against a health care provider, the carrier can pursue a products liability case involving machinery or equipment. The carrier must first investigate to see if the employee was injured by a product on the employer’s premises, including the health care provider’s premises. Thereafter, the carrier must obtain the following information: type of equipment, maintenance records, information regarding the training the injured worker may have received for operating the equipment, pictures of the product, and Cal-OSHA reports, if any. Most importantly the employer must secure the equipment and not tamper with it after the accident. The employer should also consider hiring an expert to immediately evaluate the equipment, which could prove to be quite helpful later on. In conclusion, remember that the California Civil Code bars workers’ compensation carriers from subrogating against medical malpractice lawsuits, but does still allow them to subrogate against products liability cases. If a malfunctioning machine is involved, take immediate action to secure it from any tampering and consider hiring an expert to evaluate it. It may just save a whole lot of money. Peter Fitzpatrick is a partner at Bradford & Barthel. This entry from Bradford & Barthel's blog appears with permission. |