By Angela Hart, POLITICO PRO
September 26, 2019
SACRAMENTO — A deep-pocketed lawyer and a coalition led by Consumer Watchdog are launching a November 2020 ballot initiative that would multiply the amount medical negligence victims stand to receive in court, potentially resurrecting a political dogfight involving attorneys, hospitals and doctors.
Opponents of the Medical Injury Compensation Reform Act, passed in 1975, are seeking to pass a November 2020 ballot initiative that would index the legal payout cap for inflation — initially raising it to $1.2 million for people injured as a result of what's referred to as "non-economic" damages such as pain and suffering, loss of limbs or hearing and wrongful death, according to a document obtained by POLITICO.
The coalition estimates it will need $4 million to gather signatures and qualify the initiative. The effort comes nearly five years after another MICRA initiative was roundly defeated amid opposition from major health industry groups.
Three initiative filers said they're getting involved because they've been personally affected by the cap and are expected to submit the "Fairness for Injured Parents Act" Thursday.
Trial lawyer Nick Rowley said the lungs of his own infant son were "blown up" as a result of medical malpractice. He told POLITICO he will dig into his own pockets and do "whatever it takes" to undo the cap, while parents of injured kids will be the face of the initiative.
"I've had to look countless parents in the eye and tell them that the pain and suffering caused by the death of their baby is only worth $250,000," Rowley said in an interview. "It's the most horrific unjust law in the country. ... The reality is that we are all in a state where our politicians and governors have all been in the pocket of the insurance companies and lobbyists, and that's why these sons of b------ haven't done anything about it."
In addition to raising the cap for inflation, the initiative would allow judges and jurors to provide additional damages above that cap for permanent disability or death and require that juries be informed about the existence of the cap, according to Consumer Watchdog, a Santa Monica-based group that teamed up with trial lawyers to back the 2014 initiative. The new proposal would also require wrongdoers to pay more of the cost of patient care for those injured by medical malpractice.
"Suffering and loss of life is worth more than $250,000, and most other states don't have caps like California," said Jamie Court, president of Consumer Watchdog. "The fact that it hasn't been adjusted since the Vietnam War ended makes it regressive, and any limit on what a jury can decide because of what politicians decided in 1975 is regressive."
The formal initiative filers include Chula Vista father Scott Olsen, who said his son was disabled for life by medical negligence more than two decades ago, and a Fullerton couple whose daughter has Cerebral Palsy that they say is also the result of medical negligence.
Rowley will fund the initiative, while Consumer Watchdog will primarily handle strategy and communications, they said.
The 2014 ballot initiative would have raised the compensation cap beyond $1 million but failed miserably, with 66.8 percent of voters opposed. But Proposition 46 was a grab bag of wishes that ultimately led to its demise.
Critics blasted the initiative as a ploy by trial attorneys to generate more legal fees for themselves. Controversial provisions would have required drug testing of doctors and mandated that health care practitioners consult a prescription drug database before prescribing opioids and other controlled substances.
"It was confusing to voters, and 2014 was historically low voter turnout," Court said. "The good thing is it raised the debate... This time it'll just be about medical negligence, and most importantly this is going to be a big blue wave and we're going to have an electorate truly reflective of California values."
Court didn't rule out a legislative deal to keep the initiative off the ballot. The Consumer Attorneys of California are not involved with the launch, he said.
Political consultant Gale Kaufman ran the 2014 opposition campaign but said Wednesday she couldn't comment until reading the initiative. Individual groups involved in the 2014 campaign declined to comment, including the California Medical Association, which represents doctors.
But a coalition opposing MICRA changes, Californians Allied for Patient Protection, warned in a statement to POLITICO of higher health care costs. The group's board has representation from organizations representing doctors, dentists, insurers and hospitals, among others in the health industry.
“I have yet to see any language of a proposed initiative so I cannot speak to any specifics at this time," said Lisa Maas, the group's executive director. "However, what I can tell you is that last time there was an initiative to lower MICRA protections, 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 in every county across the state.”
Backers say the new initiative would also address a primary reason for the 1975 law — frivolous lawsuits brought against doctors. It would require that plaintiffs file a certificate of merit, proving there were witnesses to alleged incidents and that lawsuits are not fishing expeditions for hefty financial payouts.
"By putting this requirement in there, the consequence of filing a meritless lawsuit is that you'll have to pay the health care providers' attorneys fees, so that's going to be a strong deterrent," said Rowley, who said he opposed the 2014 initiative.
Rowley said he's prepared to spend above the roughly $13 million that proponents spent in 2014. He said his son's lungs were "blown up" due to improper use of a ventilator during hospitalization for a respiratory illness.
"I recovered professionally, but at the same time I made it my life's purpose to represent patients and families — victims of medical negligence," he said.
He said during 2017, he met with Gov. Gavin Newsom as a gubernatorial candidate. Newsom told him that MICRA was a bad law that never should have been passed, and that he intended to change it. But he said Newsom as governor has not responded to requests to discuss the matter, though Rowley said he'd like Newsom to endorse the initiative.
Newsom spokesperson Nathan Click declined to comment.