Archive for February, 2014

Medical Malpractice and Settlement Caps

Is $250,000 Adequate Compensation For the Loss of A Loved One?

By Jillian Devlin
 

Last week, the Los Angeles Times reported about a campaign collecting signatures for a ballot initiative that would significantly increase the medical malpractice cap in California, which is currently $250,000.  Supporters have until March 24th to submit signatures.  The increase could significantly affect you and your loved ones.  This blog is intended to provide an objective overview of the current med mal law, and the proposed changes to it.  Our goal is to educate people, especially those who could possibly be voting for this major reform next month.

History of Medical Malpractice in California

In 1975, California legislature enacted the Medical Injury Compensation Reform Act, or MICRA.  MICRA mandates that all awarded pain and suffering damages (emotional/physical harms) related to medical malpractice shall be no greater than $250,000, even in the case of death.[1]  That amount has not been adjusted for inflation at any point in the law’s nearly 40-year existence.[2]  Pain and suffering damages are considered “non-economic damages”, which are damages/harms that are intangible and difficult to calculate.  This is opposed to tangible “economic damages”, such as medical bills, lost wages, or property damage, which have easily ascertainable values.  Both economic damages and punitive damages (damages designed to punish the defendant in a lawsuit) are unlimited under MICRA.

Importance of Pain and Suffering Awards at Trial

Quite often, the jury awards given for non-economic damages by a jury verdict make up the largest portion of any jury verdict.  Additionally, the awards given by the jury symbolize the jury’s desire to hold a defendant financially accountable for their mistakes, besides future medical expenses and lost wages (economic damages).  Most importantly, a large award for pain and suffering is habitually an impetus to amendment, adjust, or completely reform policies and procedures, which protects medical consumers and promotes public policy.[3]

In California, a jury may award you millions of dollars in regard to non-economic damages/pain and suffering; but because of MICRA, the award will automatically be reduced to exactly $250,000, no matter how much negligence or malpractice occurred.[4]

Which People Are Most Negatively Impacted by MICRA?[5]

Women, children, and the elderly.  Why?  We have to look at the type of damages that MICRA limits, and those damages it does not.  Because MICRA does not limit economic damages (lost wages and medical bills), women, the elderly, and children, have less loss wages (if any) to be reimbursed.  Generally, women tend to earn less than men, many elderly do not work, and children cannot work.  Therefore, the unlimited amount of economic damages available to them does not mean much.

Also, women may be more affected because a number of injuries only women can sustain result in more non-economic, rather than economic damages.  For example, if medical malpractice causes a miscarriage or loss of fertility, this could cause a huge amount of non-economic damages (pain and suffering), but minimal economic damages (medical bills, lost wages). 

Award caps also negatively affect most victims’ ability to sue because tort attorneys will be hesitant to take a medical malpractice case.  Attorneys practicing tort litigation tend to work on a contingent basis; typically clients pay nothing upfront, and the lawyers receive a certain percentage of the damages awarded to their client at the end of litigation.  Because non-economic damages are limited to $250,000, many attorneys may reluctant to take on cases with a small chance of significant payouts in relation to the amount of work put into it difficult and expensive malpractice cases.

What Would the New Ballot Initiative (NBI) Do?

The ballot initiative would raise the limit on medical malpractice damages to $1.1 million in California and also allow for continued adjustments for inflation.  Additionally, the ballot measure would mandate all physicians to check a prescription drug tracking data before prescribing controlled substances to patients; undergo randomly administered drug and alcohol testing throughout the year, and mandated drug and alcohol testing after an unexpected death or injury occurs; report any medical negligent or substance misuse by other colleagues; and lastly, automatic suspension if physicians test positive for alcohol or drugs while on duty.[6]

Critics of the NBI

Critics of the NBI claim that all the ballot initiative would increase health care costs, lawyers’ fees, and meritless lawsuits; and decrease access to care and possibly the quality of medical care.[7]  People who support MICRA, the current law in place, also state that MICRA helps attract physicians to the state.

Many people in the medical community argue that in relation to higher health care costs, a raised cap will lead to higher medical practice insurance rates, more hesitant doctors prone to performing extra tests, and physician shortages for community clinics.[8]

Proponents of the NBI

People who are in favor of raising the medical malpractice claim, argue that if the NBI passes, it will be beneficial for many different reasons.  First, people’s access to counsel for medical malpractice claims will greatly increase.[9]  Supporters of the NBI also claim that the research is mixed on whether medical malpractice caps actually decrease soaring healthcare costs, and even if a decrease is shown, it is often a trivial percentage.  Proponents of the NBI also have an emotional argument; often if parents lose a child as a result of a physician’s malpractice or negligence, the most they can recover for their pain and suffering is $250,000.  Although no amount of money can ever replace losing a child, other parts of the ballot initiative, such as mandatory drug testing and automatic suspension, could help other parents avoid the unimaginable hurt and suffering of losing a child.[10]

Conclusion

As with any political discussion, it is important to be informed.  There are many more in depth articles, opinions, studies, and research to review and educate yourself in order to make the best choice for you and your family, in regards to the raising of the medical malpractice cap.  Whatever your opinion, I hope you enjoyed this blog and learned a few new things about an important topic.

*About the author: Jillian Devlin is a third year student at Thomas Jefferson School of Law.  Her interest in personal injury law stems from working with injured athletes and patients at the University of Iowa, where she received a degree in Sports Medicine and minored in Psychology.

Want to learn more about the author or get legal advice? Click here and contact Bonnici Law Group, APC today.


[1] Planned Ballot Measure Would Raise State’s Medical Malpractice Cap, California Healthline, February 19, 2014

[2] Planned Ballot Measure

[3] California Consumer Advocates Seek to Raise Medical Malpractice Caps, Cutter Law, September 11, 2013

[4] California Consumer Advocates

[5] Raise the cap on malpractice awards, Los Angeles Times, August 13, 2013

[6] Planned Ballot Measure

[7] Hope dimming for changes to California medical malpractice awards cap, ABC News, August 16, 2013

[8] Reality Check: Does Malpractice Reform Carry Price Tag?, NBC Bay Area, August 17, 2013

[9] Raise the cap on malpractice awards

[10] Raise the cap on malpractice awards

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