Call or email us anytime
(805) 484-0333
Search Guide
Today is Monday, March 18, 2024 -

Industry Insights

Fitzpatrick: Medical Malpractice and Workers' Compensation Subrogation in the Golden State

  • State: California
  • -  0 shares

One of the quirks of California workers’ compensation law is that insurance carriers cannot subrogate against medical malpractice lawsuits.

Peter V. Fitzpatrick

Peter V. Fitzpatrick

The issue is codified in California Civil Code section 3333.1, which states in relevant part as follows:

“(a) In the event the defendant so elects, in an action for personal injury against the health care provider based upon professional negligence, he may introduce evidence of any amount payable as a benefit to the plaintiff as a result of the personal injury pursuant to the United States Social Security Act, any State or Federal Income Disability or Workers’ Compensation Act, any health, sickness or income-disability insurance, accident insurance that provides health benefits or income-disability coverage, and any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the cost of medical, hospital, dental, or other health care services. Where the defendant elects to introduce such evidence, the plaintiff may introduce evidence of any amount which the plaintiff has paid or contributed to secure his right to any insurance benefits concerning which the defendant has introduced evidence.

"(b) No source of collateral benefits introduced pursuant to subdivision (a) shall recover any amount against the plaintiff nor shall it be subrogated to the rights of the plaintiff against a defendant.”

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.

No Comments

Log in to post a comment

Close


Do not post libelous remarks. You are solely responsible for the postings you input. By posting here you agree to hold harmless and indemnify WorkCompCentral for any damages and actions your post may cause.

Advertisements

Upcoming Events

  • May 13-15, 2024

    NCCI's Annual Insights Symposi

    Join us May 13–15, 2024, for NCCI's Annual Insights Symposium (AIS) 2024, the industry’s premier e …

  • Jul 29 – Aug 2, 2024

    76th Annual SAWCA Convention

    SAVE THE DATE! 76th Annual SAWCA Convention July 29 – August 2, 2024 Hotel Effie Sandestin 1 Grand …

  • Aug 14-17, 2024

    CSIMS 2024 Annual Dual Track C

    California Society of Industrial Medicine and Surgery (CSIMS) is combining its two conferences, PI …

Workers' Compensation Events

Social Media Links


WorkCompCentral
c/o Business Insurance Holdings, Inc.
PO Box 1010
Greenwich, CT 06836
(805) 484-0333