GOP covets state medical malpractice caps

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As premiums rise, national Republicans would like federal law to emulate California’s

Oakland Tribune

Losing a breast to cancer was just the first blow to Tomita Shimamoto’s world.

The Oakland woman went through eight painful surgeries over the next five years to correct what she says was a botched reconstructive plastic surgery to her breast in 1991.

“I was in shock that I lost that part of my body,” Shimamoto, 59, said. “It’s yours and you miss it and you want it back.”

Her story will forever be one of private questions, not public resolution. Despite the fact that her plastic surgeon was put on probation by the California Medical Board for falsifying prescriptions for Demerol and cocaine, Shimamoto could not find a malpractice lawyer to take her case.
The reason? A $250,000 cap on pain and suffering in the state, she said.

California has the strictest medical malpractice law in the country. The Bush administration and Republican members of Congress are pushing to extend California’s rules to the rest of the nation — reigniting the debate in this state over the fairness of restricting malpractice payouts and causing concern among doctors about future liability.

Lawmakers have their eye on California because malpractice premiums in other states have increased by 437 percent since 1975, according to most estimates, while premiums here are up by only about one-third of that.

Last month the House passed a bill to cap noneconomic damages — such as pain and suffering — to $250,000, for medical malpractice cases, mirroring California’s law.

Senate Majority Leader Bill Frist, R-Tenn., a heart surgeon, is crafting a similar bill, but could include a larger cap of $500,000 in noneconomic damages. Unlike California law, the Frist version may also award up to $2 million for catastrophic cases of severe disfigurement or death.

The Senate compromise stalled last month when the lone Democrat in favor of the caps, Sen. Dianne Feinstein, D-Calif., pulled her support for the plan, citing opposition to the higher cap and catastrophic exception from doctors’ groups. Sen. Frist has said he will try to craft a compromise this spring.

The national debate over malpractice law has — at least figuratively — opened old wounds for California patients like Shimamoto.

“Doctors are so protected,” Shimamoto said. “Now Bush wants the rest of the country to have these limits, it’s just awful.”

The talk of higher caps also has California physicians worried.

“A half-million dollar cap in every other state would create pressure to change California law,” said Peter Warren, spokesman for the California Medical Association. “We do not support that.”

Even if the Senate fails to pass a medical malpractice bill, consumer groups said that national discussions of higher caps and catastrophic benefits may help create political will for bigger awards in California.

“Frist and Feinstein opened the Pandora’s box for medical malpractice caps,” said Jamie Court, executive director for the Foundation for Taxpayer and Consumer Rights, a consumer group in Santa Monica. “We are exploring either legislation or a ballot initiative to raise the cap here.”

State Sen. Sheila Kuehl, D-Los Angeles, has sponsored two previous bills to change medical malpractice rules in the state.

“I think that timing is the real question here,” Kuehl said. “There is an ongoing discussion of strategy, but I don’t have a bill in this year.”

California limited noneconomic damages for malpractice cases to $250,000 in 1975. Called MICRA, or the Medical Injury Compensation Reform Act, the law also puts a statute of limitations on claims of one year from the date the malpractice is discovered. The law does not limit economic damages, such as lost income if a person can no longer work, or payment of medical bills.

Critics of MICRA, including malpractice lawyers and consumer groups, said that a key problem with the law is that the noneconomic cap has never been adjusted for inflation. If it were, today’s cap would be about $800,000, according to the Foundation for Taxpayer and Consumer Rights. The House bill does not provide inflation adjustments either.

Critics also argued that MICRA is not even responsible for keeping malpractice premiums down in the state. Instead they point to a 1988 ballot measure called Proposition 103 that restricted rates for all insurers.

Defenders of MICRA said that MICRA — not Prop. 103 — allows medical professionals to focus on care without facing ever increasing premiums on malpractice insurance.

MICRA protects access to care in California,” said Dr. Jack Lewin, CEO of the California Medical Association. “People come to quicker lawsuit resolution than in other states.”

James Bostwick, a prominent medical malpractice lawyer in San Francisco, said that the $250,000 cap means that his firm cannot afford to take on legitimate malpractice cases, like Shimamoto’s.

“I guarantee there are lots of cases out there that would be meritorious, but people can’t find a lawyer in California to take their case,” Bostwick said. “In MICRA cases, the lawyers’ fees are taken out of the $250,000, and that is just not enough for lawyers or the families.”

In malpractice cases, medical experts are extremely important, and those witnesses charge upward of $400 to $1,000 an hour, Bostwick said. Other costs include obtaining, compiling and analyzing medical records, hiring investigators, paying for court reporters’ and defense experts’ time for depositions. All costs are taken out of malpractice awards.

“It can be horrendously expensive,” Bostwick said. “If you’re lucky, expert testimony will run $30,000 to $50,000. A complex, tried case will run over $200,000 in expert testimony.”

Shimamoto said that she was told by the several malpractice lawyers she had a strong case, but because of the monetary limits to noneconomic damages, they would not take her on. “One lawyer told me, ‘If it had been your face that was carved up I might be able to do something.'”

The California Medical Association disagreed that MICRA has had an impact on the number of malpractice cases going to trial. “In the 25 years that MICRA has been around there has been no decline in the number of cases that get filed,” Warren of the CMA said. “MICRA does create limits on lawyer fees, and I think that says more about what lawyers are interested in than the legitimacy of cases.”

A 1991 Harvard Medical Practice Study showed that only 2 to 10 percent of injured patients ever get as far as filing a lawsuit.

California consumer groups said that the debate going on in the Senate underscores the inherent problems of MICRA.

“It strikes me as proof of how inequitable California’s malpractice law is when Frist allows for twice the non-economic damages of what we have,” Court said. “It shows how pitiful our state law is.”

The CMA argues that higher malpractice caps would drive doctors, especially those in high-risk specialties such as obstetrics, out of the field.

“No one is advocating that injured people get no money,” Warren said. “But society needs to make some decisions because this issue is beginning to impact access to care for everyone.”

Shimamoto did not receive economic damages to pay for the seven surgeries she needed to fix her breast, including one that lasted 10 hours and required two teams of surgeons. Or the physical therapy required so she could stand upright and walk again. Her health insurance covered all that.

“I consider myself lucky now,” she said. “But I think about all the other women over age 50 whose insurance premiums will go up because of the cost of my surgeries.”

Consumer Watchdog
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