California malpractice damage cap boost too late for some

Malpractice Investigation

(NewsNation) — For the first time in almost 50 years, payments to those affected by medical malpractice in California are set to increase after lawmakers unanimously passed a landmark bill this month.

The bill, which Gov. Gavin Newsom signed last week, comes after months of negotiations between rival interest groups and will overhaul a 1975 law that has been controversial since it was passed nearly five decades ago.

Tune in to NewsNation Prime at 8/7 Central Wednesday for the third installment of our investigation into medical malpractice laws.

But for those 47 years, families looking for representation were left with few options.

“Nobody valued her life and nobody cared,” said Tracy Dominguez, whose daughter died of pregnancy-related complications in 2019.

Demi Dominguez (left) with her fiancée Xavier De Leon.
‘do what you need to do’

Tracy Dominguez and Xavier De Loen are bound by tragedy.

In late 2018, Tracy Dominguez’s daughter and De Leon’s fiancée, Demi Dominguez, discovered she was pregnant. But complications during pregnancy resulted in the deaths of both mother and child.

For the first eight months of Demi Dominguez’s pregnancy, everything went fine. But after 32 weeks, she started experiencing strange symptoms. In a prenatal class, a nurse had told the expectant mothers to trust their instincts — a piece of advice De Leon will never forget.

“She was like, you know your body more than any doctor in the world, so if something doesn’t feel right then you go and you do what you need to do,” he said.

Remembering the nurse’s advice, Demi Dominguez went to the hospital and was kept overnight. During her stay, her mother and De Leon say she was never officially seen by the doctor on call at the hospital.

Despite high blood pressure and increased levels of protein in her urine, she was released the next day. She followed up with her OB-GYN, who prescribed her an over-the-counter blood pressure medication and told her to go home and get some rest.

That night, De Leon woke up and found her convulsing in bed. She began turning blue and he called 911.

“As soon as she took that last breath, everything was just relaxed and in my heart, that’s when I knew that she had passed,” he said.

An ambulance rushed her and her unborn son to the hospital, where doctors performed an emergency C-section to try and save the baby.

The baby, named Malakai, was in critical condition and airlifted to a nearby children’s hospital. Doctors did what they could but it wasn’t enough to save him.

De Leon made the excruciating decision to take his son off life support.

He was given a chance to say goodbye and a for a few minutes, everything felt normal.

“I was just holding my son and enjoying that special moment that everybody deserves to have with their family,” he said. “I just remember rocking him and then all of a sudden he wasn’t hiccupping anymore and that’s when I kind of came back to reality.”

Demi Dominguez with her fiancée Xavier De Leon.
Stuck in Legal limbo

The coroner’s office determined that Demi Dominguez died from eclampsia — a rare but serious complication where high blood pressure during pregnancy leads to seizures.

According to Tracy Dominguez, the ER doctor who helped deliver Malakai told her a simple electrolyte injection could have prevented the seizures and saved both mother and baby.

The revelation was infuriating to them.

They also later learned that the doctor on-call the night Demi Dominguez went to the hospital, who never evaluated her in person, had been disciplined by the state medical board in 2000 for “gross negligence,” “repeated negligent acts” and “incompetence,” resulting in the deaths of two babies.

Determined to seek justice, they began looking for lawyers to file a medical malpractice lawsuit.

But after numerous meetings, nobody would take the case.

Time and again they were told the same thing: Lawyers rarely take on medical malpractice cases in California because of a state law that limits the damages victims can recover.

Supporters of the original 1975 law argued that increasing the caps on damages would result in significant increases in medical malpractice insurance premiums for doctors, but Consumer Watchdog chief Carmen Balber says there is no evidence of that.

“What we saw when this cap was enacted in California, and in states across the country, is that the cap has no relationship to medical malpractice insurance premiums,” she said.

Critics say the caps instead protected bad behavior by discouraging victims from filing complex and costly lawsuits.

The new bill will increase the state’s cap on the damages people can receive for nonmedical expenses like pain and suffering from $250,000 to $350,000 on Jan. 1, 2023. Over the next decade, that amount would rise to $750,000.

The bill increasing caps in California does not apply retroactively, which means for thousands, including Xavier De Leon and Tracy Dominguez, the change is too little, too late.

“Demi and Malakai aren’t going to come back, but we don’t want another family to feel this frustration that we have felt,” Tracy Dominguez said. “If we can make a change for one family then that’s it. I think we did our job on Earth.”

Kelly Milan contributed to this report.

This story is part of NewsNation’s investigation into the tangled web of state medical malpractice laws that can make it difficult for patients and family members to file lawsuits against doctors they believe were medically negligent. Find all of our coverage on the topic here.

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