Another Ballot Measure Proposed To End Medical Negligence Damages Cap

Consumer Watchdog filed a new ballot measure Thursday to make a frontal assault on the Medical Injury Compensation Reform Act, known as MICRA, a 1975 law capping non-economic medical negligence damages at $250,000,


September 27, 2019

MICRA, meet FIPA. Consumer Watchdog filed a ballot measure Thursday to make a frontal assault on the Medical Injury Compensation Reform Act, known as MICRA, a 1975 law capping non-economic medical negligence damages at $250,000, long hated by plaintiffs’ attorneys.

The Fairness for Injured Patients Act, proposed for the 2020 ballot, could enjoy two advantages that a previous effort, Proposition 46, lacked in 2014: money and a friendly electorate.

The act would index MICRA to inflation, immediately raising the cap to about $1.2 million. It would also allow juries to circumvent the cap entirely in cases of lifelong “catastrophic” injury or death and set limits on attorney fees.

The effort would go before voters six years after they rejected Proposition 46, which also would have indexed MICRA. Business and medical groups spent $58 million to stop it, compared to $12 million spent by proponents.

”While we are still reviewing the details of the initiative, we know it includes many provisions that would hurt access to health care in California,” said Lisa Maas, executive director of Californians Allied for Patient Protection. “The last time there was an initiative to change MICRA, California voters realized that changes to MICRA would ultimately increase costs and decrease access to health care and resoundingly rejected the proposition by a 2-1 margin across the state.

Californians Allied for Patient Protection was registered with the IRS in 1992 with the mission of defending MICRA. Its members include the California Chamber of Commerce and the California Medical Association.

But one of the new initiative’s main proponents, medical malpractice attorney Nicholas

C. Rowley, said he is prepared to put “$15 to $20 million” of his own money behind the effort. Rowley represents both patients and doctors  as a  partner  at  Carpenter Zuckerman & Rowley LLP in Beverly Hills.

“Nobody has rallied patients and stormed the Capitol,” Rowley said. “That will be done. People just haven’t cared enough about it.”

Rowley said Proposition 46 wasn’t “honest” or “straightforward.” The initiative got caught in debate over a provision calling for increased drug testing of doctors.

He also noted 2014 set a record for the lowest November election turnout in California history. Rowley added the MICRA c p disproportionately hurts women and minorities, who have been less able to prove economic damages.

“We could have the most progressive electorate ever to vote in November,” said Jamie Court, president of Consumer Watchdog.

Court shared an internal polling memo from Hart Research Associates. It claimed a survey of 1,000 likely voters conducted in May and June found 72% support. This included 79% of Democrats and 70% of Republicans.

In January, Rowley spoke of the need to change MICRA at the ballot box when he accepted the Consumer Attorneys Association of Los Angeles’ 2018 Trial Lawyer of the Year Award. Court was in the audience. By April, the two men were officially working together on the initiative.

Court said the act is written to short-circuit many of the traditional arguments that have been used to tum back changes to MICRA in the past. The initiative’s findings and declarations section argues the “cost of caring for undeterred medical negligence has and will add significant costs, which are borne by California taxpayers and health care insurance providers rather than wrongdoers.”

The initiative would require plaintiffs to file a certificate of merit along with their complaint and demands anyone found to have filed a meritless lawsuit must pay the doctor’s legal fees and costs. It would also demand future juries be told of the MICRA cap.

The campaign will also focus on two longstanding criticisms of MICRA: its age, and how out of step it places California in the national scheme of medical negligence caps.

According to the initiative, the current “$250,000 cap is worth only $50,768 in 1975 dollars.”

A fact sheet distributed by the campaign calls the MICRA compensation cap “the most regressive in America.” Twenty states have no cap at all, including three that threw out the caps via various means this year.

Only two other states have a $250,000 cap, but Texas allows this amount for up to two defendants while Montana lacks California’s strict one-year statute of limitations. Court argued health care costs are generally lower in these states, and malpractice costs contribute only about 1% of medical costs in California.

The Consumer Attorneys of California spent $2.3 million to back Proposition 46 but have not joined the current campaign.

“While we have not participated in this effort nor taken a stand on the proposed initiative, CAOC as an organization has never wavered from a fundamental belief that MICRA is unjust and unfair to patients whose lives are ruined by preventable medical errors,” said CAOC president Mike Arias and CEO Nancy Drabble in an emailed statement.

The statement went on to say the movement to change MICRA has been gaining support, but the consumer attorneys group believes “the best place to address this issue is in the state Legislature.

This raises the possibility lawmakers could avert the initiative with a legislative compromise, the way they did with proponents of an online privacy initiative in 2018. But Rowley said he has no interest in going that route.

SB 1429, a 2014 bill that simply declared, “The intent of the Legislature to bring interested parties together to develop a legislative solution to issues surrounding medical malpractice injury compensation,” died without getting a vote.

The California Medical Association spent $5.3 million to stop Proposition 46 and about $2 million on lobbying in Sacramento in 2018. The group also spent $1.3 million on political campaigns during the 2017-18 cycle. This included $1 million against the gubernatorial campaign of then State Controller John Chiang, who had made single-payer health care a focus of his campaign.

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