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Lawyers' Crusade Against MICRA Threatens California's Medical Safety Net

9/16/2013 7:38:51 PM | 4 comments

"It is absolutely critical for the healthcare safety net that MICRA be preserved. It protects our patients and the stability of community health centers to continue to be able to serve the uninsured and economically disadvantaged."

— Jim Mangia, president and CEO, St. John's Well Child and Family Centers (Compton, Calif.)

Each day, thousands of commuters gaze into the eyes of six-week-old Mia Chavez, who died of whooping cough in 2010. "Medical Negligence Kills," reads the Sacramento billboard bearing her picture. "A 38-year-old law says Mia's life was worth only $250,000."

The ad is calculated to pack an emotional punch. Unfortunately, it doesn't tell the whole story.

For one, the lion's share of the $6,635 display was funded not by concerned citizens but by trial lawyers. What's more, their attack on the "38-year-old-law" in question could threaten the health of thousands of California children.

In July, a representative of Consumer Watchdog and Consumer Attorneys of California (CAoC) filed a ballot initiative proposing the overhaul of California's landmark Medical Injury Compensation Reform Act (MICRA). Among other changes, the lawyers propose to quadruple the cap on non-economic damages in medical malpractice suits from $250,000 to $1.1 million.

MICRA was enacted in the California state legislature with bipartisan support in 1975. At the time, skyrocketing malpractice insurance costs were closing facilities and forcing physicians out of practice.

In 1985, the California Supreme Court upheld MICRA's constitutionality. Thus far, state legislators have steadfastly resisted lobbying that would alter or repeal the act.

After being rebuffed on all fronts, trial lawyers' organizations are now seeking to put the issue of tort reform directly to California voters.

CAoC's website calls MICRA "a formidable obstacle in seeking accountability in a court of law for medical negligence." It adds that MICRA removes crucial economic decisions from citizen juries and unjustly enriches insurance companies.

It doesn't mention that de facto elimination of the damage cap would be a bonanza for its members. Trying a medical malpractice case costs upwards of $100,000. Lawyers can't afford to touch one unless the potential payout is enormous.

As a physician, I see the threat to MICRA as one of the sharpest swords hanging over California's healthcare system. We're already experiencing a shortage of physicians. Our community health clinics barely receive enough in reimbursements to care for our existing patients on Medi-Cal (California's Medicaid program).

Still, we're better off than many states. To put things in perspective, Florida law limits non-economic damages to $500,000 (twice as much as MICRA). In 2010, Los Angeles obstetricians paid an average liability premium of $49,804. By contrast, those in Miami paid $200,377.

The de facto elimination of the non-economic damage cap would be devastating to California's medical safety net. Virtually no doctor could afford to care for people enrolled in the Medi-Cal system, which is set to expand by as many as 900,000 enrollees by 2019. Critical services, particularly those in economically marginal urban and rural areas, would be forced to close.

Voters who see Mia's billboard need to consider the unspoken effects of increased medical malpractice litigation. They need to picture parents driving a desperately sick child 50 miles to reach an emergency department, or thousands of children going without life-saving vaccinations.

Contrary to the rhetoric, MICRA doesn't leave victims high and dry. Under current law, Mia's family is entitled to the full cost of her care (including future care when appropriate). If she'd been a victim of egregious negligence, they'd also be entitled to unlimited punitive damages (minus the lawyer's cut, of course).

A $250,000 award for pain and suffering isn't some crass valuation of a loved one's worth. It's simply a reflection of our limited resources and our need to care for millions in an environment where error is ultimately inevitable — even with appropriate precautions in place.

The interests opposing MICRA are organized and well-funded. The California Medical Association, which is committed to fighting the initiative, is now accepting donations through its political action committee, CALPAC.

In addition, please shine a light on the underhanded interests pushing this initiative. Californians Allied for Patient Protection has prepared talking points to guide these conversations.

"Critical services, particularly those in economically marginal urban and rural areas, would be forced to close." <br /> <br />Using this logic, then there should be no doctors in Beverly Hills, since patients there are most likely to receive the largest payout under the current MICRA system. <br /> <br />Is there currently a shortage of doctors in wealthy areas? <br />
12/6/2013 9:30:45 PM

" If she'd been a victim of egregious negligence, they'd also be entitled to unlimited punitive damages." <br /> <br />The doctor is wrong. "Egregious" negligence will not entitle you to punitive damages. <br /> <br />I think the doctor meant to use the word "purposeful" negligence.
12/6/2013 9:27:07 PM

The only difference between veterinary malpractice and human malpractice is the "pain and suffering". <br /> <br />Like human malpractice, in Veterinary Malpractice you can recover someone's lost "market value" and future health. You cannot recover "pain and suffering" for your animal. <br /> <br />The only difference is the 1975 pain and suffering figure of $250,000, worth about $60,000 today.
12/6/2013 9:21:49 PM

Eric Andrist
Man, are you people in the medical industry that deluded or are you just making sure that you all cover your butts in case you're ever sued for medical malpractice. <br /> <br />My disabled sister died last year due to medical negligence. Due to MICRA, it took me over 8 months to find a lawyer who would take my case. Had I gone another 4 months, I would have been out of luck and the doctors and hospital that killed my sister would have simply gotten away with it. And unfortunately, that's what happens more times than not...because of MICRA. <br /> <br />MICRA was instituted due to a phony malpractice insurance scam (by Argonaut Insurance) that raised doctors insurance rates and made them pay through the nose. The only reason they did this was because they had done poorly in the stock market and took it out on the doctors. In turn, MICRA was passed so that it could then be taken out on the victims of medical negligence. <br /> <br />You're right, the billboard was purchased by the trial attorneys, but it was done on behalf of all of us medical negligence victims, past, present and future. For 38 years we have been denied our right to a jury trial because of MICRA. Only the very worst of cases that contain economic damages make it to court. My sister was disabled, unmarried, no children and did not work. She did not have any economic damages. So the only thing we can sue for is non-economic damages (pain and suffering), and that is capped at $250,000. That amount was arbitrarily decided in 1975 and has never been raised for inflation. Today it is worth less than $57,000. And remember, you have to first take out the court costs and attorney fees before you can calculate what the victim gets. That amount today should be just over a million dollars. <br /> <br />I have been in contact with the original author of MICRA, Senator Barry Keene. He has given me a written statement agreeing that the cap needs to be raised with inflation. If the original author of the law feels it needs to be changed, then it needs to be changed! <br /> <br />Of COURSE the medical industry doesn't want it to change because it's given them a safe haven from malpractice lawsuits. But that isn't the intent of MICRA. It's sole purpose was to keep malpractice insurance rates in check, but it never even did that! Doctors have paid through the nose for insurance all these years. They have kept the insurance companies in business, including the Doctors Company, which is run by doctors! Studies have proven that they take in way more in profit than they ever pay out in settlements. And you all just sit back and let it happen and then take it out on your patients. Less than 5% of doctors are the ones who are negligent in these cases, and you're letting them spoil it for the rest of you. You should be ashamed. <br /> <br />Dr. Peter Curran, who is the past president of the San Francisco Medical Association was sued for malpractice last year. Shortly before his verdict came out in December, he wrote in his society's journal: <br /> <br />"Finally, and most important, never underestimate the importance of MICRA. Other than your own performance in the trial process, there is no greater deterrent to malpractice lawsuits than MICRA's cap on pain and suffering damages." <br /> <br />Which proves that doctors know that MICRA protects them from malpractice lawsuits. <br /> <br />Fortunately, he lost his case and the jury awarded the family $1 million. But because of MICRA, it was instantly reduced to $250,000. This cocky doctor was negligent and a jury decided that he was responsible for taking a patient's life, and yet because of MICRA, that life is only worth $250,000. Less actually...remember, that's in 1975 dollars and doesn't include taking out court costs and lawyer fees. <br /> <br />It's clear from this article that Dr. Lienen has fallen for the propaganda of the AMA and CMA and groups like CAPP with the information on MICRA. I ask all of you reading to do some research on your own. Look up the articles from 1975 which talk about the real reasons MICRA was enacted. You'll see that I'm right about Argonaut Insurance Company. You'll see that they proved years later that MICRA never lowered doctors insurance rates, doctors really were NOT leaving the state in droves, and there really was NOT an malpractice insurance scare. I have a lot of these articles on my blog at <br /> <br />There are 22 states without any form of tort reform, and they aren't having any of the problems that Pro-MICRA people want you to think California will have if we raise the cap. 12 of those states have found tort reform to be unconstitutional because it strips away a patient's right to a jury trial. <br /> <br />If the doctor that killed my sister had run her over with his car in front of the hospital, we could sue him for millions and win millions, holding him accountable for his negligence. But because he did it inside the hospital as part of his "profession," we cannot. No other profession has this protection. No other person ever gets away with killing someone like doctors can. If a child sneaks over the fence and drowns in my pool, I can be sued for millions, even though it's not even my fault. But a doctor kills my helpless, disabled sister, and it's totally possible that he'll get away with it with a slap on the hand. <br /> <br />Check out the website for other medical negligence stories. See all the people who never got to court because of MICRA. Read the story of Alan Cronin who went in for hernia surgery and came out with no arms and legs. How can ANY of you tell him that his life without limbs is only worth $250,000? <br /> <br />BTW, the Supreme Court upheld MICRA's constitutionality based on the erroneous theory that there actually was an insurance scare in 1975. But there wasn't. Further, there is no need for MICRA today to regulate insurance rates because that's what Prop 103 does, and it does it very successfully. Check out your auto insurance rates for proof of that. <br /> <br />There are studies which have proven that getting rid of, or instituting a cap does nothing to the number of doctors that practice in a state. Texas likes to boast about all the doctors that started practicing there after they instituted tort reform, but there are still tons of small towns in Texas that have no doctors or gynecologists at all. The studies they like to point out don't take into consideration all the doctors with an MD who don't practice medicine or have retired. There are actually less practicing doctors in Texas than before they got tort reform. <br /> <br />This information is readily available on the internet for you to see for yourself. The problem is, most of you just sit back and listen to the propaganda of people like Dr. a bunch of sheep. Why not, MICRA gives you all a protection from lawsuits! Responsibility to your patient's safety be damned! <br /> <br />I don't know what Dr. Leinen is talking about when he says "removal of the damage cap." No one's asking for a removal of the damage cap. Further, the trial attorneys aren't asking for their cap to be raised, only the cap on victim's pain and suffering. <br /> <br />Community health clinics are not affected by MICRA. That's erroneous information. Clinics are exempt under the Federal Tort Claims Act, so it’s dishonest to claim that there will be any impact on clinics. <br /> <br />Dr. Leinen wants you to think that Mia's family is entitled to the full economic cost of her care, which is totally not true. Her hospital bills will be paid IF they win, but the family doesn't get that. Mia was an infant and therefore has no economic damages. She doesn't get money for missed work or loss of consortium. While a victim can also sue for punitive damages, they are rarely ever awarded...less than 5% of the time. <br /> <br />And let's not forget the tons of money that doctors make testifying against each other in court. Let's not forget about all the trial attorneys that they hire to defend them in court. Let's not forget about the fact that doctors have the insurance companies to pay for the cost of their trials, while the victims have to rely on the lawyers to cover the costs of trial in hopes that they prevail. <br /> <br />People like Dr. Leinen and the AMA/CMA want to try and paint the trial attorneys as the bad people in this scenario, but that's just an easy scapegoat. If it weren't for the trial attorneys, medical negligence victims could never get to court because they can't afford the costs to bring the case. The rich doctors don't have to come up with a cent for the trial itself (unless they're stupid enough to have a poorly written insurance policy). <br /> <br />So again, do the research. Stop being sheep and just falling for the rhetoric just to keep your safe haven from lawsuits. Remember, a doctors job responsibility is to his/her patients. Do right by them before and after you've seen them. Start working harder on patient safety instead of worrying about being sued. <br /> <br />And by the way, no one's falling for the defensive medicine malarky anymore. A recent study proved that doctors are just as defensive (in the VA system) when there is no threat of lawsuits looming. <br />
10/3/2013 2:29:16 AM