Sacramento, CA – Legislation that allows survivors of medical negligence to continue to recover damages for the pain and suffering of their loved ones before they died passed the California Senate last night by a vote of 21 to 9.
Until 2022, California was only one of only four states without pre-death pain and suffering damages – the right of survivors to recover damages for a victim’s pain and suffering before they die. SB 29 (Laird) extends the right to collect pre-death pain and suffering until 2030.
“SB 29 is an important evening of the scales,” said Jamie Court, president of Consumer Watchdog. “California’s previous prohibition on pre-death pain and suffering effectively denied justice in cases of fatal medical negligence, where patients endured unimaginable pain, but their voices were silenced by death before a court could hear their story. This gave defendants an incentive to stonewall their cases until the patients died.”
The change enacted in 2022 finally gave California families the ability to seek accountability for that suffering but the reform sunsets. SB 29 would preserve this essential right; a right that grieving families have had in other states, and ensure California is no longer an outlier in its failure to acknowledge victims’ pain.
“I lost my son due to gross medical negligence and, at the time, there were no
pre-death pain and suffering damages available,” said Tammy Smick, a Consumer Watchdog board member whose son Alex Smick died at age 20 from a fatal overdose administered by a doctor at a facility where he was recovering from addiction. “That prevented my family from finding justice in a court of law because the damages were not great enough. The lifting of the ban on pre-death pain and suffering allows more survivors to seek justice so families are not locked out of the courts as I was. As Consumer Watchdog’s research shows, there has been no increase in medical malpractice claims as a result of the changes.”
Smick is a constituent of Senator Bob Archuleta, who she wrote with her story to urge his support for the bill. Archuleta, however, did not vote on the bill although he was present.
Similarly, Tracy Dominguez lost her daughter and grandchild in a tragic case of medical negligence. She turned to her Senator, Melissa Hurtado, to support SB 29, but Hurtado also chose not to vote on the legislation.
Other senators were more responsive to those victimized by medical negligence in their districts.
Yes votes: Allen, Arreguin, Ashby, Becker, Blakespear, Cervantes, Cortese, Durazo, Gonzalez, Laird, Limon, McGuire, McNerny, Menjivar, Padilla, Perez, Smallwood-Cuevas, Stern, Umberg, Wahab and Wiener.
No votes: Alvardo-Gil, Choi, Dahle, Grove, Niello, Ochoa Bogh, Seyarto, Strickland and Vallares
New research conducted by Consumer Watchdog reveals that medical malpractice insurance loss ratios in California hit historic lows after the state lifted its ban on pre-death pain and suffering damages in 2022, undercutting industry claims that the law would raise costs.
Analysis by Consumer Watchdog actuary Ben Armstrong, FCAAS, MAAA, found that the average loss ratio, which is the percentage of premiums paid out in claims, for the top five medical malpractice insurance companies in California were among the lowest in history the year after the pre-death pain and suffering ban was lifted in 2022 – at a mere 7%.
“The idea that pre-death pain and suffering damages are driving up medical costs is a nothing burger,” said Court. “With loss ratios at historic lows after the law’s passage, the data clearly shows there is no cost impact to physicians or patients.”
California’s 10-year average loss ratio from 2014 to 2023 was just 35.8%, far below the national average of 50.6%, according to data from the National Association of Insurance Commissioners (NAIC). “California physicians continue to overpay for their medical malpractice premiums compared to physicians elsewhere based on lower loss ratios in the state,” Court added.
The legislation is deeply personal to families like that of Tracey Mueller Gibbs of San Diego, whose son Rowan tragically died due to medical negligence, and who was unable to find an attorney to take her case because of the inability to recover pain and suffering damages prior to his death. “This issue is profoundly personal to me,” said Gibbs. “It is my deep wish that no other family should ever have to endure the pain and suffering that my family has faced.” Gibbs wrote the legislature about her story to advocate for the continuation of pre-death pain and suffering damages.
