Gwilliam Ivary Chiosso Cavalli & Brewer

Are California's medical malpractice damage limits going national?

personalinjury059.jpeg

California laws governing how medical malpractice claims are handled legally were changed in 1975 in response to alleged concerns over rapidly increasing costs medical professionals faced for insurance coverage. Although limits on medical malpractice damages has been a conservative talking point in Congress for the last several decades, the debate has been kickstarted by medical provider advocacy groups and this time the U.S. Congress is listening.

New proposals are on the table that would force every state to institute or increase restrictions on lawsuits for medical negligence. California's Medical Injury Compensation Reform Act (MICRA) is often held up as the model which other states should be forced into following.

In this post, we'll take a look at one aspect of California's 40 year old MICRA and why it has been harmful to medical consumers since its passage.

Capped limits on the dollar amount of non-economic damages

The most controversial component of MICRA is the $250,000 cap on pain and suffering damages that may be paid by the negligent party. This cap applies in lawsuits against an individual licensed physician, nurses or other licensed practitioners, medical groups, clinics or hospitals. Under provisions of the law, so-called "non-economic damages" includes pain and suffering and emotional distress. While a jury may actually award significantly higher non-economic damages, California judges are mandated by law to reduce the recoverable award to no more than $250,000.

The practical effect of the cap is that the seriously injured plaintiff has no real ability to recover fair or adequate compensation for the life-long damages that are a very real and significant aspect of a life-changing physical injury.

Why would the state legislature continue to restrict damages to $250,000?

It is difficult to understand the continued rationale behind the cap, let alone the failure of the legislature to increase the amount of the cap to keep up with inflation, other than to assume it is a continuing nod to the powerful medical and healthcare insurance lobbying groups keeping almost constant pressure on legislators in Sacramento. Adjusting the MICRA cap to account for 40 years of inflation would move the limit to approximately $1.1 million.

Ultimately, we suspect that health care providers and their insurers would prefer to eliminate any future challenges to the non-economic damages that can be recovered. The result will be a patient facing a lifetime of pain, disability and emotional injury with compensation that continues to decline over time.

What the cap ultimately means for injured parties

The cap on non-economic damages has had one important effect that cannot be overlooked when seeking legal counsel for a medical malpractice injury. Often, only very serious cases that include significant economic damages are financially feasible for an attorney to pursue on a contingency fee agreement. This requires demonstrating that the so-called non-economic damages like pain, disability and emotional suffering and the decline of social activities will have very real economic impact on the patient over their lifetime. Recovery of economic damages, although under attack, have not been capped...yet.

Got questions? Visit our website at www.giccb.com and hit the email button to submit your questions.

No Comments

Leave a comment
Comment Information
  • Best Lawyers Best Law Firms U.S News & World Report 2016
  • Bar Register Preeminent Lawyers 2012,2013,2014 Martindale-Hubbell
  • Avvo Rating 10.0 superb Top Attorney Employment
  • Peer Review Rated | for ethical standards and legal ability 2014 | Martindale-Hubbell
  • super lawyers
  • The Employee Rights Advocacy Institute For Law & Policy 2015-2016 Visionary Circle

Gwilliam Ivary Chiosso Cavalli & Brewer 1999 Harrison Street, Suite 1600 Oakland, CA 94612 Phone: 510-823-0323 Oakland Law Office Map

Review Us