"We are the most progressive state in the country with the most regressive medical malpractice laws in the country," the president of Consumer Watchdog says.

By Cheryl Miller, THE RECORDER

September 26, 2019

https://www.law.com/therecorder/2019/09/26/caps-on-medical-malpractice-…

A Southern California trial lawyer, the parents of injured children and the leader of a consumer group say they’ll go to the ballot box in 2020 to try again to lift the state’s cap on medical malpractice damages.

Nicholas Rowley, a partner at Carpenter Zuckerman & Rowley, and Jamie Court, president of Consumer Watchdog, on Thursdays unveiled a proposed 10-page ballot initiative that would gut California’s Medical Injury Compensation Reform Act. The law, widely known as MICRA, caps noneconomic damages for medical malpractice at $250,000. It has been the bane of the plaintiffs attorneys and their clients for more than four decades now.

“We are the most progressive state in the country with the most regressive medical malpractice laws in the country,” Court said.

The initiative would tether the noneconomic damages cap to inflation, raising it to $1.2 million in today’s dollars and adjusting it annually thereafter. Judges and juries would be allowed to award damages above the cap in cases involving “catastrophic” injuries and death. And the measure would disallow evidence of collateral sources of victim support, such as insurance policies, and end mandatory periodic payments to plaintiffs.

The initiative also includes provisions that Rowley said are aimed at discouraging frivolous lawsuits. Attorneys for plaintiffs in medical negligence cases would be required to attest to the defendant that they’ve consulted with a health care provider who has found a “reasonable basis” for the claim. If a judge finds a lawsuit meritless, the plaintiff would have to pay the defendant’s expenses and attorney’s fees.

Rowley said the initiative was drafted with the help of James Harrison, partner at election law firm Remcho Johansen & Purcell.

The California Medical Association and another supporter of the caps, Californians Allied for Patient Protection, were not immediately reached for comment.

The plaintiffs bar last tried to overturn MICRA in 2014 with Proposition 64, which promised to increase the damages cap while also requiring doctors to undergo drug and alcohol testing and to use the state’s prescription drug database. Insurers and medical trade organizations spent nearly $58 million to oppose the measure, which voters rejected overwhelmingly on election day.

Backers of the 2020 initiative said their measure will fare better than its predecessor because it’s focused solely on MICRA and because they anticipate a high turnout of progressive voters in next year’s presidential election.

“The ballot measure in 2014 wasn’t straightforward. It wasn’t honest,” Rowley said. “They put out a ballot measure in a bad election year.”

Rowley, who said he is ready to finance what would surely be a multi-million-dollar initiative campaign on his own, does not have the initial support of the organized plaintiffs bar. Consumer Attorneys of California president Mike Arias and chief executive officer Nancy Drabble said Thursday that the organization has not taken a position on the measure.

“We believe the best place to address this issue is in the state Legislature, and our hope is that state elected leaders will embrace the need to correct an antiquated law that has undercut patient safety and basic human rights for too many decades,” Arias and Drabble said in a statement.

Former Gov. Jerry Brown, who signed the original MICRA legislation, did not support many of the plaintiffs attorneys’ political goals, such as restricting the use of arbitration and expanding consumers’ opportunities to sue.

Gov. Gavin Newsom’s position on the trial bar’s agenda will be more fully fleshed out as he signs or vetoes some of the hundreds of bills now on his desk. And while Democrats hold large majorities in both houses of the Legislature, significant blocs in their caucuses remain unfriendly toward consumer attorney-backed bills that are opposed by business groups.

Both Court and Rowley questioned the Consumer Attorneys’ commitment to finding a broad legislative solution, noting that the law has been on the books since 1975.

Supporters must collect 623,212 valid signatures to qualify the measure for the ballot.

 

Cheryl Miller, based in Sacramento, covers the state legislature and emerging industries, including autonomous vehicles and marijuana. She authors the weekly cannabis newsletter Higher Law. Contact her at [email protected]. On Twitter: @CapitalAccounts