Santa Clarita Attorney Discusses the Basics of Medical Malpractice with Attorney Ben Ikuta

VIDEO TRANSCRIPT:

​Robert Mansour:
Recording. All right, everybody. My name is Robert Mansour. I'm a personal injury lawyer here in the Los Angeles area. And today I have a very special guest who's actually dressed much nicer than I am, attorney Ben Ikuta. Ben is a medical malpractice lawyer in Los Angeles and Orange County serving basically all of California, right, Ben?

Ben Ikuta:
That's correct, yes.

Robert Mansour:
Yeah, and Ben has had his own practice for nearly 10 years now. And before that, I believe he worked as a defense attorney in the medical malpractice field, correct?

Ben Ikuta:
Not quite.

Robert Mansour:
Oh, tell me. Tell me.

Ben Ikuta:
Well, I was a defense lawyer for eight years defending doctors, hospitals, nurses. I beat a very prominent lawyer in trial and he hired me on the plaintiff side.

Robert Mansour:
I see.

Ben Ikuta:
That was about eight years ago. And won a few cases there, made named partner, so I owned that firm with him, but then I decided to go on my own a couple of years ago. So my firm's been around for about two and a half years now.

Robert Mansour:
And I opened my own firm maybe 20 years ago after 10 years of practice, and it was one of the scariest things I ever did. So I want to thank you for joining me today. Ben, for those who may not know who I am or who Ben is, Ben is one of my referral partners. I refer medical malpractice to Ben's firm for evaluation, and if Ben thinks he can help the client, he may go ahead and sign up the client and take it from there. So Ben, I just wanted to ask you some very general questions today. This is going to be very easy. I'm sure you're going to pass the exam. So a lot of people call my office and they think that every personal injury attorney can handle a medical malpractice case. Can you explain why medical malpractice is more of a niche area of personal injury versus just any general personal injury lawyer?

Ben Ikuta:
Sure. There are two primary reasons. The number one reason is frankly the law. There's a law called MICRA out there. It's a series of actually eight different laws, laws that really are based in tort reform and really hurt the patient and help doctors and hospitals. These laws are very complicated. They're very, very thorough. There's been a lot of litigation over the years, and a lot of personal injury lawyers don't understand these medical malpractice specific laws. And it's not just laws on caps and damages and that kind of thing. There's actually evidentiary laws also. So the actual experience in the courtroom, how you litigate a case is different in a medical malpractice case than a personal injury case. Secondly, and even more importantly, it's about the medicine. We know the medicine at my firm, we've handled these cases over and over again. We have the leading experts in all these different areas. And for a general car accident or general personal injury practitioner, they just don't understand the medicine as well. So for those two reasons, medical malpractice really is a niche area that requires specialists.

Robert Mansour:
Okay. So it's kind of a world within a world, if you will?

Ben Ikuta:
That's right?

Robert Mansour:
So you want to make sure that you have the proper guide sitting with you in the river raft when you go river rafting. You want somebody who knows the river very well, knows where all the rocks are, where all the danger is. So let me ask you this. What are the most common types of medical malpractice cases you get calls about? And maybe we can also dovetail into what are the most viable cases? Oh, we got Michelle joining us. May we admit her into the room?

Ben Ikuta:
Okay, sure.

Robert Mansour:
All right. Let's see here. Looks like she's connecting. Oh, there she is.

Michelle Hemesath:
Hello.

Robert Mansour:
Hello, Michelle.

Ben Ikuta:
Hi, partner.

Robert Mansour:
Hey, Michelle. We were just talking and actually I'm actually recording this, and you also look much nicer than I do. You're dressed much nicer than I am.

Michelle Hemesath:
I'm in a mediation right now, so if I pop off it's because the mediator came back in.

Robert Mansour:
Okay. Well, maybe we'll just hear what Ben has to say about this last question. We're recording this conference right now, and I was asking Ben about the most common medical malpractice cases you guys get calls about. And maybe you can also comment or [inaudible 00:04:11]-

Speaker 4:
[inaudible 00:04:11] Gabriela. Waiting. [inaudible 00:04:14]-

Michelle Hemesath:
Oh, sorry, let me mute this here.

Robert Mansour:
You're good?

Michelle Hemesath:
There we go.

Robert Mansour:
Okay. So we want to talk about the most common types of cases you get as well as what makes a case viable. How about that? Maybe both of you can chime in on that. Ben, why don't you start?

Ben Ikuta:
We get calls in all different types of medicine when it comes to medical malpractice cases, from cardiac to dental to OB-GYN to neurology, family practice, internist, hospitalist, I mean, radiologist. We get calls in all different types of medicine. The question is what cases are viable? And frankly, there are two basically general areas, although there are plenty of exceptions, but the two areas that are most viable are one with catastrophic injury. We're talking about people who are paralyzed, amputation, brain damage or death. The second category are cases where even a lay person could easily understand. You don't need an expert witness to tell you that operate on the wrong leg or the wrong patient or giving a patient medication you're allergic to or allowing a predator be a nurse and [inaudible 00:05:27] the patient. The second types of cases are the ones that are clear liability, ones that only cannot be defended, but there are plenty of cases in between that we do take. We have four full-time intake coordinators to really vet and suss out those viable cases.

Cases that often are not viable that they sound like they should be, but they're not are the cases where the recognized risk defense, it's a real possibility. Just because something bad happens or a mistake happens, even if it relieves the catastrophic results, that does not mean it's medical malpractice. Mistakes can happen and those mistakes can be reasonable. And the defense, one of their main arguments will always be the recognized risk defense. So a botched surgery where there's a dural leak or there's a laceration to an artery, those cases they could lead to catastrophic injury or death. Usually they're not viable cases due to that defense.

Robert Mansour:
Michelle, I didn't introduce you. You're Ben's partner over there. You are not married, but a lot of people apparently think you might be married, but you're his partner over there, Michelle. And can you comment a little bit about some of the defenses that you see in these types of cases? Kind of springboard what Ben was talking about.

Michelle Hemesath:
Sure. I would say that the recognized risk defense is certainly one that we see, but honestly, it's that they're really honing in on the fact that these doctors are out there to help people. And I think that they try to focus on the word malpractice as if it's some type of criminal intent. And while malpractice certainly doesn't mean that the doctor has to have a bad intention, I think that the defense tries to frame it in such a way that jurors feel like, well, this doctor's just out there trying to help somebody, and so we shouldn't hold him responsible just because something bad happened. They want to see some type of intentional conduct when that's certainly not what's required. And so what they'll do is they'll try to frame it in such a way that the jurors feel bad for this doctor. They're thinking, well, how's this going to impact the doctor's life? So that's one of the ways, but I'm going to hop off because my mediator just came back on, so I'm going to allow Ben to just finish this up.

Robert Mansour:
It was nice to meet you, Michelle.

Michelle Hemesath:
Nice to meet you.

Robert Mansour:
Take care. So let's continue with a few more questions here, Ben. Let's say that you have a viable case or you were harmed by a doctor. One of the things that I see a lot is people wait months or even years before they decide to pick up that phone. How can that be a problem? What kind of advice would you give to people who think that they may have been harmed?

Ben Ikuta:
It's hard, right? Because a lot of these cases do involve death or serious injury, and obviously people need to grieve. People need to recover. At the same time, there's not a very long statute of limitations in medical malpractice. In general law, in general personal injury law, it's two years. There's often different cause of action that have even longer statutes. In medical malpractice, it's one of the shortest statutes that we have in California. It's only one year, and it's extremely strict, even mere suspicion of negligence starts the clock. And I can't tell you how many times per week we reject cases because it's simply untimely.

And unlike a car accident case where if someone gets rear-ended, it's pretty easy for that lawyer to sign that person up and determine there's a case there. For us, given the complexities of medical malpractice, we have to have an expert look at the case first, which takes time. So we need time on our end to evaluate a case. And so our firm policy is that if the client comes to us in the last two months of the statute, we reject the case immediately without any assessment of the facts or the viability of the case. So it's critically important that if you are harmed by medical malpractice, that you seek representation or you seek consultations immediately.

Robert Mansour:
Okay. So let me ask you this. So let's say some doctor does a surgery on a client and the client doesn't realize that something is wrong until maybe six months later they're like, "Hey, wait a minute, I'm having these issues." And then they meet with another doctor who says, "Yeah, you know what? That first doctor screwed up and that shouldn't have happened." Does the realization of the injury affect that statute or is it just very strict whenever that procedure was done that starts the clock.

Ben Ikuta:
Okay, good question. It's when they first suspect that there was malpractice, so it wouldn't be the date of the surgery, it would be the date that they first suspected malpractice. But there's two problems. Number one is even the tiniest bit of suspicion is enough, start the clock. And secondly, even if that person had no knowledge of malpractice, if a reasonable person in that patient's shoes believed there should have been malpractice or would've been malpractice, that is enough to start the clock.

Robert Mansour:
Right. So it's not your personal realization necessarily.

Ben Ikuta:
Correct. It's one or the other. Both can qualify. Your personal realization or a reasonable person in your shoes.

Robert Mansour:
Got it.

Ben Ikuta:
And the problem is a jury will determine what's reasonable and not reasonable, and that's just another hurdle that our firm has to overcome in a very difficult area of law. So if there's even a possibility, even a possibility of a statute of defense, most med mal firms, including ours, will reject the case.

Robert Mansour:
Right. Okay. Got it. So let's say you have a viable case, you decide to accept the client's case. What kind of things do you and your firm do to prepare the case, if you will, to present the case for a possible settlement?

Ben Ikuta:
So that's a great question. First of all, I want to just say that there's no or not to say no, but it's very, very uncommon to have settlements prior to litigation, prior to the filing of a complaint. It's extremely rare. We call it a unicorn in our profession.

Robert Mansour:
Versus a standard car accident where 90% of the time the case is settled before a lawsuit has to be filed. But you're saying, in your world it's very rare for that to occur. A lawsuit almost always filed.

Ben Ikuta:
Exactly. In 16 years of doing this, eight on the defense side, eight on the plaintiff's side handling thousands of cases, I've had less than 10 settle prior litigation.

Robert Mansour:
Wow, okay.

Ben Ikuta:
I mean, we've had cases where they poured acid instead of solution into a patient's eyes. We've had cases where they operated on the wrong body part. We've had cases where they operated on the wrong patient, and all of these cases did not settle prior to litigation.

Robert Mansour:
Got it.

Ben Ikuta:
There's a variety of reasons for that. So every case needs to be prepared as if it's going to go to litigation. In fact, every case needs to be prepared as if it's going to go to trial. There's a lot of other reasons too, why these cases don't settle very easily. And so it's critically important that we work up these cases with our experts, not just liability but damages as well. In California, we have some pretty severe and restrictive caps on emotional damages called MICRA. And that law limits what a patient can recover. Currently, it's only $390,000. That may sound like a good amount of money, but that's the absolute cap, the absolute worst case scenario for these insurance carriers and these hospitals. So they're not going to even pay close to that much. And more importantly, there's just no risk, right? There's no possibility of a multimillion dollar verdict. So for that reason, they fight on every case to set a tone in other cases.

Robert Mansour:
So I understand. So what does MICRA stand for? Just you mentioned this law a couple of times now.

Ben Ikuta:
The Medical Injury Compensation Reform Act of 1975.

Robert Mansour:
Okay. And those caps were recently changed, right?

Ben Ikuta:
Yes, very recently. And to be clear, MICRA applies to eight different laws. One of the eight, the most severe are these caps on emotional damages. They were recently changed. For 48 years, it was $250,000. And just in 2023, a little over a year ago, they increased it to 350 and it goes up $40,000 a year. But still, these are still caps on damages. If you lose a leg to malpractice or you lose your eyesight due to malpractice, the most you can get for emotional damages is only $390,000 currently.

Robert Mansour:
Which is problematic for somebody like you because your firm is going to spend a lot of money preparing this case and you got your fee to consider, and then the client may get a fraction of that at the very end of the case. So those are probably considerations that you have when you decide to take on a case.

Ben Ikuta:
Exactly. Considerations that we have. And also considerations for the defense. They know that it costs me approximately $130,000 to try a case. They know that it takes me hundreds of hours to try it. And so they want to set a tone for future cases. Unlike in auto cases, there's only about five medical malpractice insurance carriers. That's it. Of those five, in fact, two of them insure I think over percent of all doctors. And so they want to set a tone. They want us to send a message that we're not consulting these cases easily, so you better think twice before taking that next case. And it's worked marvelously, unfortunately, for our firm and more importantly for our clients. So if you think about it mathematically, if the most we can get is $390,000 and it costs me $130,000 to try a case and I get a third of the fee for my firm, it's economically not viable. And for the patient, they're left with very little. Even if we do win the case.

Robert Mansour:
I think one of the most difficult parts for us as lawyers is saying no to the client. And we're not saying no to the client because we don't think they were harmed. We're saying no to the client because we're running businesses and we need to be able to take a case that is going to make money for our business as well as one that we're just not going to lose money on because this costs us money to prepare, and you want to make sure the client gets something in their pocket at the end of the day. So people shouldn't take it personally if you reject their case.

Ben Ikuta:
That's right. Yeah. That's definitely true. And in medical practice, it's especially true given the challenges. Jurors just don't feel qualified to judge doctors like they would bad drivers or bad employers or in a breach of contract case. And it makes it very difficult for us to win. So these cases when they're complicated and they involve a lot of experts or the damages aren't there, when it comes to economic damages, we have to say no. And it's hard. It's really hard because people have suffered, but we have no choice. We get quite a few referrals as well, and we owe it for existing clients that we don't overburden ourselves as well. But yeah, it's tough. It really is tough saying no sometimes.

Robert Mansour:
Yeah, it certainly is a tough area. So let's see here. Let's close this out. Just to ask you a general question, what is the most rewarding part of your work and what are some of the biggest challenges that you have in your field?

Ben Ikuta:
The most rewarding part of my work is the appreciation from the clients. I'm looking at my phone now because I got a text this morning from a client. I just settled her case yesterday. She wrote, "We are very fortunate you had the wherewithal to take this case. The settlement would be life changing for us and couldn't come at a better time. We appreciate everything you and your team have done, which is just top-notch. Thank you so much."

Robert Mansour:
Fantastic.

Ben Ikuta:
She gave me permission to share that too. So that was sent this morning by a client [inaudible 00:17:31] case yesterday. And so that's the most rewarding thing. We can make a difference in people's lives. And because medical malpractice is so hard, we are one of the few firms that do it on the plaintiff's side. And so we really represent people who don't have other options. They can't find other lawyers. So it's extremely rewarding when we are able to get a good result for those clients. The second part of your question, I believe, was what's most challenging?

Robert Mansour:
Yeah. What are some of the most challenging things for you?

Ben Ikuta:
The most challenging is to win. I hate saying that, but it's just to win. Over my last seven trials that I've had, the combined offer in those trials from the defense was $0.

Robert Mansour:
Really?

Ben Ikuta:
Yes, zero. And that included four wrongful death cases. Now, I won four of those seven cases, but the three that I lost, I lost over $100,000 in cost, and my clients walked away with nothing. It was absolutely heartbreaking. People like doctors, and it's very difficult to win these cases. So that is the most challenge, losing's the most challenging, and it's difficult. Losing a case is really hard.

Robert Mansour:
It's the same thing in my world to this standard motor vehicle type accidents, standard slip and fall type stuff. The hardest thing is that loss. But we try and we do our very best for the clients, which is why case selection is so important because you don't want to take that client on the journey if you know the journey is not going to end very well from the get go. We don't want to give false hope to anybody. So is there anything that you'd like to add, Ben, that we haven't covered yet that you think the average folks should know about the world of medical malpractice? Or do you think we got it covered pretty well?

Ben Ikuta:
I think got it covered pretty well. I want to make just one comment about Kaiser, if that's okay.

Robert Mansour:
Sure.

Ben Ikuta:
Yeah. Kaiser is an arbitration. And frankly in our experience, we've done better in arbitration in Kaiser cases than we have in civil court. Part of the reason why is not only because we specialize in medical malpractice, but even more importantly, you have to retain a medical malpractice firm against Kaiser specifically. And the reason why is because there's only a certain number of arbitrators. The arbitrators are the judges basically that decide the case on the Kaiser panel that are decided from. Kaiser is a repeat player for them. And if Kaiser finds against them or rules against those arbitrators, I'm sorry, if the arbitrator rules against Kaiser, pardon me, kaiser will strike them from future cases. They'll refuse to use them.
​
And so if you use an automobile accident lawyer on a Kaiser case, there's an enormous incentive for that arbitrator to find against the claimant or the plaintiff in that case. We are like Kaiser a repeat player, and if the arbitrator unfairly rules against us, we can strike that arbitrator from future cases that we're involved. And we have in our firm, I think over two dozen cases against Kaiser. So it's critically important not just for the experience, not just for the knowledge, but also just for basic fairness that patients hire attorneys when it comes to Kaiser cases, attorneys that specialize in medical practice, excuse me.

Robert Mansour:
Right. Because you know the players, you know the arbitrators, they have an incentive not only to be fair to Kaiser, but also to be fair to your firm because you are a repeat customer.

Ben Ikuta:
Correct.

Robert Mansour:
And just for the people watching, an arbitration is when you resolve your case outside of the court system and you present your case to usually a single individual called an arbitrator. And usually that person is a retired judge or are these lawyers, who are these folks, Ben. These arbitrators.

Ben Ikuta:
Yeah. I would say about 50/50. 50% are retired judges and the other half are retired lawyers. But it's a complicated system involved in Kaiser. But I'll just say that almost every case gets into arbitration. They have agreements through employers with almost every single Kaiser member or Kaiser patient. And so these cases will invariably end up in arbitration. And again, just to even have a basic even playing field, you have to have a med mal lawyer like my firm.

Robert Mansour:
Right. Speaking of your firm, people can get in touch with you either by calling my office and asking about their case, and then I can introduce them to your firm. Also, people can contact you directly if they would like. Your website, I believe is I for your last name, the letter I, the letter H for Michelle's last name -llp.com. Is that correct?

Ben Ikuta:
That's right.

Robert Mansour:
All right. And what is the best phone number if people want to call you directly?

Ben Ikuta:
(949) 229-5654. Yeah, that's our phone number.

Robert Mansour:
Wonderful. Ben, thank you so much for spending time with me today. I hope this information is helpful to prospective clients or people who've been harmed. And we're going to put this up on our website, provide a transcription. Thanks again for your time today.

Ben Ikuta:
Thank you.

Robert Mansour:
All right. You take care, Ben.

Ben Ikuta:
Thank you.

Robert Mansour:
Bye-bye now.

Robert Mansour is a personal injury lawyer in Santa Clarita, CA and can help advise you regarding your medical malpractice case.  He serves the entire Santa Clarita Valley including Valencia, Canyon Country, Saugus, Newhall, Castaic, Stevenson Ranch, and surrounding communities. Call Santa Clarita personal injury attorney Robert Mansour at (661) 414-7100 for a free consultation and evaluation of your medical malpractice case.  You can also fill out our Free Case Evaluation form.

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