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Medical Malpractice Initiative Expected to Make November Ballot in California

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California medical malpractice initiative

In September, several families of patients injured by medical malpractice filed a proposed initiative for California’s November 2020 ballot known as the Fairness for Injured Patients Act. The California Secretary of State’s office announced last month that the ballot initiative was cleared for circulation. Backed by the advocacy group, Consumer Watchdog, proponents of the initiative now have until June 1, 2020 to obtain 623,212 signatures from registered voters for the initiative to appear on the November 2020 ballot.

Before we examine the objectives of the Fairness for Injured Patients Act, let’s first take a look at the current medical malpractice laws in California, which have stood for nearly 45 years.

In 1975, Governor Jerry Brown was in his first term. Together with the Democrat-controlled legislature, Brown passed legislation sponsored by the medical profession and insurance companies known as the Medical Injury Compensation Reform Act (MICRA). MICRA capped “pain and suffering” awards for medical malpractice at $250,000. In a column this week, the Los Angeles Times referred to the 1975 legislation as an overreaction “to threats of doctors retiring or fleeing the state because malpractice awards were rising and insurance premiums climbing even faster.”

The passage of that 1975 legislation effectively meant that regardless of the injury you endured due to medical malpractice — be it a lost limb or a lost life — the maximum allowable award via a personal injury verdict was $250,000. That maximum allowable award of $250,000 is still the law as of 2019.

According to proponents of the new Fairness for Injured Patients Act, in 1975 dollars, California’s maximum $250,000 compensation cap is worth $50,768. Indexing the $250,000 cap for inflation would raise the figure to $1,231,084.45 in today’s dollars.

Additionally, proponents argue that more than half the states in the nation do not have caps like California. Additionally, 20 states and the District of Columbia have no caps at all, while 15 other states have caps with exemptions for wrongful death or catastrophic injury. California is one of only three states (the others being Montana and Texas) with a cap as low as $250,000 and no exemptions.

As the LA Times noted, because of the $250,000 cap in California, “after paying attorney fees and court costs, you’d be fortunate to net $100,000. And you’d probably settle for less to avoid court expenses and frustration, if you could even find an attorney to take the low-paying case.”

The cap on pain and suffering still allows a victim to collect for actual economic losses such as healthcare expenses and lost income. However, if a victim of medical malpractice does not have an income — such as a child, student, or a retiree — under the law they have no wages to lose, and therefore cannot claim such damages even in situations of permanent disability or death. In such cases, the victim’s caretakers or survivors are essentially limited to damages of $250,000 for pain and suffering.

As for what the Fairness for Injured Patients Act hopes to achieve, the initiative reads as follows:

“Since 1975, the maximum compensation any patient-victim is entitled to for disfigurement, permanent damage to quality of life, physical impairment, disability, pain, loss of a limb, blindness, and other quality of life damages is $250,000. Brain-damaged babies and children with spastic quadriplegia and cerebral palsy caused by medical negligence are limited to $250,000 as maximum quality of life compensation by this 1975 legislative cap despite the fact that they will never be able to walk, talk, eat, or live any facet of a normal human life.”

The ballot initiative seeks to adjust the limit set by the 1975 legislation for inflation, and would pave the way for juries and judges to deem whether the cap is appropriate on a case-by-case basis. In Section 3 of the initiative, five additional steps to be taken related to intent are listed:

  • Juries should be informed of the compensation cap.
  • Judges and juries, not politicians, should have the discretion to decide whether the cap applies in cases of medical negligence that cause catastrophic injuries or death.
  • Judges, not politicians, should have the discretion to determine that the fees paid to an attorney are reasonable and not excessive in cases of medical negligence resulting in catastrophic injury or death and update attorney fees originally capped in 1975 for inflation.
  • The collateral source rules that apply in other civil cases should also apply in medical negligence actions and periodic payments for medical negligence verdicts and judgments should be disallowed.
  • Preserving patient rights in California should be balanced with safeguards and deterrence against meritless lawsuits. Attorneys who file medical negligence lawsuits should be required to file a certificate of merit, and attorneys who file meritless lawsuits alleging medical negligence should pay the doctors’ attorney’s fees and costs. This, along with extending the time patients have to file as in other cases will provide sufficient time to obtain a certificate of merit and will deter and reduce the number of meritless lawsuits.

Scott Olsen and Bree & Nelson Moreno are parents of children who have been injured by medical malpractice in California. In the Fairness for Injured Patients Act ballot initiative, they detailed what they consider to be three of the most odious aspects of the 1975 legislation:

  • “California juries are not told about the 1975 legislative cap or made aware that the damages they award a patient will be arbitrarily reduced to $250,000 notwithstanding the severity of the medical negligence or of the harm caused to the patient or survivors.”
  • “The current 1975 law unfairly discriminates against women and their survivors because women do not receive equal pay and also do not receive fair compensation for losses that specifically affect women, like loss of fertility, failure to diagnose breast and cervical cancer, and injuries to women during childbirth.”
  • “This severe restriction on patients’ and survivors’ legal rights to hold medical providers accountable was accompanied by a promise that a strong regulatory system would be created to protect patients from harm. That never happened. Patient safety scandals over the last 45 years have demonstrated that the health care system has been unable to police itself. As a result, there are no consequences in many cases of negligence, resulting in a decline in patient safety and quality of care.”

The LA Times reported that in 1993, while out of office, “Brown fessed up that he’d concluded the 1975 law was a horrible mistake. In a letter to consumer activist Ralph Nader, Brown stated he ‘strongly’ opposed adopting a California-style malpractice award cap for the nation.”

Moreover, Brown wrote how California had “found that insurance company avarice, not utilization of the legal system by injured consumers, was responsible for excessive premiums.” “Saddest of all,” Brown added, the 1975 act “has revealed itself to have an arbitrary and cruel effect upon the victims of malpractice. It has not lowered healthcare costs, only enriched insurers and placed negligent or incompetent physicians outside the reach of judicial accountability.”

Brown has yet to indicate why he failed to implement any updates or changes to the 1975 legislation when he was Governor of California from 2011-2019.

Though the initiative is expected to make the November ballot, whether or not it actually passes remains unclear. Consumer Watchdog backed a similar effort in 2013 to raise the $250,000 limit on pain and suffering to $1.1 million. That measure, known as Proposition 46, ultimately failed on the 2014 ballot (then Governor Brown never took a position on the measure).

Personal injury attorneys and proponents of the Fairness for Injured Patients Act contend that by placing a cap on pain and suffering in California, residents of the state have their constitutional rights limited.

Opponents content that removing the cap will lead to skyrocketing insurance premiums, and an increase in frivolous medical malpractice lawsuits. Similar arguments were made when the 1975 Medical Injury Compensation Reform Act passed, however, and have remained largely unsubstantiated.