California's Tort Reform Puts Injured Patients at a Disadvantage

The United States' legal system is designed to provide private citizens recourse when they are injured or damaged by the negligent conduct of others. Medical malpractice litigation is one such example of how a civil lawsuit can render justice. If a health care provider harms a patient as a result of negligence, the patient typically has the right to sue the provider to recover damages. This system can break down and result in injustice, however, when arbitrary monetary limits are placed on medical malpractice claims.

Those advocating tort reform ceaselessly make the contention that tort reform is needed to curb the filing of frivolous lawsuits. The renowned New England Journal of Medicine has reported that a Harvard University study found that the civil justice system successfully weeds out claims against health care professionals that have no merit. The study conducted by the Harvard School of Public Health and Brigham and Women's Hospital in Boston found that 90% of all claims against health care professionals involved a serious injury; 26% of those resulted in death and 80% in disability. The study reported that 63% of the injuries were a result of negligent care or treatment.

The Medical Injury Compensation Reform Act

The recent health care debate in Washington has continued to feature a call for tort reform, including limits on recovery of monetary damages by the injured victims of medical malpractice, as a means of lowering the cost of health care. Most of the argued-for tort reform patterns changes made by the State of California to its justice system as a result of a claimed insurance crisis over three decades ago. During the summit, Sen. Dick Durbin (D-IL) delivered a defense of the civil justice system, which can be found on YouTube.

California passed its version of medical malpractice reform in the Medical Injury Compensation Reform Act (MICRA) of 1975. Amongst the many "reforms" enacted, the legislature created caps on the amount of money that injured parties can recover in medical malpractice lawsuits for pain and suffering. MICRA limits the amount the plaintiff can recover for pain and suffering to $250,000. This amount has remained unchanged for 35 years. This cap is the same even if there are multiple plaintiffs or defendants in a lawsuit, although in limited circumstances the spouse of the plaintiff might also be able to recover $250,000.

In addition to non-economic damages for pain and suffering, plaintiffs can also recover periodic future payments for economic damages under MICRA. For example, if an injured patient will not be able to work for the rest of his life, he might be able to collect money for lost wages, but he will not be paid in a lump sum. Instead, the plaintiff will be paid over a period of years.

MICRA's Impact

The purported primary intent of MICRA was to decrease the premiums physicians and other health care providers paid for medical malpractice insurance. Rate relief for health care providers proved illusory under MICRA, however, and it was not until the passage of Proposition 103 in November 1988, which gave the California Department of Insurance the power to control rates and rate increases, that easing of medical malpractice insurance rates was achieved. History shows us that despite MICRA's limits on recovery, the cost of medical care has grown; witness the recent Anthem Insurance rate increases of 39%.

The true impact of MICRA becomes apparent when a patient is seriously injured due to a negligent doctor or medical care provider. In many instances, she might find herself unable to pursue just compensation for her injuries because of the limits on damages.

A major problem faced by injured patients and their families in pursuing medical malpractice lawsuits in California, according to The San Francisco Chronicle, is lack of representation. Because of MICRA, attorneys are disinclined to accept medical malpractice cases because the recoveries are relatively small, and medical malpractice cases are complicated and expensive to undertake and pursue.

Another argument of tort reformers is that limits on malpractice cases curb the practice of defensive medicine by physicians. The claim is that defensive medicine can increase costs and result in unnecessary procedures. What this type of legislation ignores is that our society encourages doctors to explore every avenue of diagnosis and treatment. This is especially true in situations where the patient's well being is in serious danger. The only time medical consumers hear that physicians claim to be practicing defensive medicine is when they are surveyed in relation to medical malpractice claims. It is unlikely, when a physician is challenged by a health insurance carrier over payment for an ordered test or study, that a physician will defend his or her order as "defensive medicine"; rather, it will be defended as reasonable and necessary.

Most California residents do not realize that they are limited by caps on medical malpractice lawsuits until they are injured by a physician or medical care provider. At that point, they might also discover they are unable to find an attorney to represent them, or that their recovery in court is insufficient to compensate them for their damages.

If you or a loved one has been injured by medical malpractice, seek the advice of an attorney who will advise you of your rights and your options.