Debate Heats Up on Political Hot Potato MICRA

You may have seen one of the billboards driving on Interstate 80. Opponents of California’s Medical Injury Compensation Reform Act (MICRA) have launched a new campaign urging legislators to reform MICRA or, in the alternative, scrap it altogether. The Act was signed into law in 1975 by Jerry Brown during his first stint as governor of California. Its proponents, primarily hospital entities and malpractice insurers, battled for passage of the Act by contending that it was the only measure to stop the dramatic rise in health care costs. The Act places several limitations only with respect to medical malpractice lawsuits.

While there are several provisions at issue, the heart of the controversy surrounding MICRA is its damages caps. The Act caps non-economic damages at $250,000. Non-economic damages include claims for pain and suffering as well as emotional distress resulting from an injury due to medical negligence, including the loss of limbs, loss of sight or hearing, the inability to walk, or even the loss of a newborn infant. In the nearly 38 years since MICRA’s enactment, the $250,000 cap has never been adjusted for inflation.

Consumer Attorneys of California, one member of a coalition, paid $6,635 to install the above billboard as part of a publicity campaign committed to modernizing or eliminating the $250,000 cap. The billboard features Mia Chavez, a 6-week-old Los Angeles County child who died in July 2010, allegedly after a doctor negligently failed to detect a whooping cough in time to save her life.

On July 24, 2013, Robert Pack, on behalf of groups Consumer Watchdog and Consumer Attorneys of California, filed a ballot measure with the Attorney General scheduled for November 2014 to change MICRA. The measure contains a provision to mandate a cost of living adjustment to MICRA’s $250,000 cap on non-economic damages. This provision will ultimately increase the non-economic damages cap to over $1 million if passed, with a built-in cost of living adjustment going forward. Filing a ballot measure with the Attorney General is just the first step in a long and expensive process to qualify a measure for the ballot.

But not all advocates of reforming MICRA are attorneys. A pair of Stanford Law School academics stated in a Los Angeles Times article that California’s 38-year-old cap on non-economic medical malpractice damages needs to be modernized – or junked altogether – because it has failed to accomplish any true health care savings and discriminates against women, children, the elderly and other groups lacking the salary to justify a significant economic award in court. (Source: http://www.latimes.com/news/opinion/commentary/la-oe-engstrom-malpractice-damage-caps-20130813,0,3601891.story) The crux of the evaluation is that the MICRA cap is unfair, and discriminates. One example is that the cap has a greater impact on those most grievously hurt. Also, the caps restrict those victims of medical malpractice, while people who bring lawsuits for other reasons have no limitations. Studies show that the cap also tends to disproportionately punish women, children and the elderly. One study in particular revealed large disparities in jury awards for these groups compared to younger men. This is largely because MICRA does not limit damages for economic losses caused by medical negligence, such as lost wages or medical bills. Women tend to earn less than men, and the elderly and children typically earn little or no income. Also, women are affected in that many injuries unique to women resulting from medical malpractice are non-economic losses, such as miscarriages or fertility loss.

Doctors, hospitals and other medical groups take the opposite view. They say lifting the $250,000 cap would make malpractice insurance more expensive, ultimately making health care more costly for consumers. The California Medical Association and other health groups are urging lawmakers to maintain the status quo.

One thing is certain. The MICRA debate shows no signs of slowing down, but instead is likely to bring a showdown in the California legislature in the next year.

The information and materials on this blog are provided for general informational purposes only and are not intended to be legal advice. No attorney-client relationship is formed nor should any such relationship be implied. Nothing on this blog is intended to substitute for the advice of an attorney. If you require legal advice, please consult with an attorney.

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