Ballot measure to lift pain, suffering cap set to clear signature hurdle
SACRAMENTO – In addition to lobbying lawmakers, tort lawyers last year threatened they'd turn to voters to raise the cap on medical malpractice suite payouts. Some observers initially greeted the move as a bluff, but as time wore on, it became increasingly clear that plaintiffs' attorneys were gearing up for a fight.
With signatures due Monday to qualify the measure for the ballot, proponents last week said they had the requisite 830,000 signatures and, save any last-minute compromise by the medical industry, were willing to take their issue public.
"We're trying to give the Legislature every chance to act, as we said we would when we went up there last May, but the sand's [run] out of the clock," said Jamie Court, head of Consumer Watchodg, one of the initiative's main backers.
After months of drawing attention to the cause and pledging to take action, trial attorneys are now facing a high-stakes ballot fight. The core issue is their desire to reform the 1975 Medical Injury Compensation Reform Act, or MICRA, to raise its cap on pain and suffering damages for malpractice victims from $250,000 to $1 million. The cap hasn't been lifted or adjusted for inflation in the law's decadeslong history.
Attorneys had preferred to tackle the issue through legislation. They bought billboard ads to pressure legislators and medical industry representatives, took malpractice victims to the Capitol, and fought back against medical groups' claims that MICRA reform would hurt community clinics, such as Planned Parenthood. But Democratic lawmakers who count both lawyers and the medical industry as supporters balked at a bill.
A spot bill by Senate President Pro Tem Darrell Steinberg, widely viewed as the last chance this term for legislation on the issue, appeared last week to be going nowhere.
Consumer attorneys aren't wading into the ballot fight without assets. For one thing, while their push at the Legislature focused squarely on MICRA reform, the ballot initiative incorporates additional elements, such as requiring doctors to be drug tested. The other additions poll well, said Chris Lehane, the initiative's campaign manager and a former Clinton aide. A summary of the ballot measure by Attorney General Kamala Harris' office frontloads the initiative's drug-testing element and mentions MICRA reform secondarily – a move seen by some as a gift to the initiative's backers.
The medical industry is "going to be arguing against specific steps that protect patient safety," Lehane said, adding that if opponents try to get doctors to argue against the initiative in ads, they'll tarnish their reputations.
Despite the medical industry's larger war chest – $30 million in loans – Lehane also said some 35 percent of voters likely won't even see the other side's communications and will vote on the summary alone.
The initiative puts medical insurers and doctors on defense, he said. "We're David against Goliath."
Backers are also confident in their narrative. In a nod to a provision that would require doctors to refer to an online database of prescription records, the initiative is named for the children of support Bob Pack, who were both killed by a driver on illegal medication. That and other anecdotes about botched medical procedures and lost loved ones could draw voter sympathy.
However, Jason Kinney, who heads the medical industry's campaign, said the ballot measure doesn't worry his side. He suggested the medical industry will emphasize MICRA in its messaging, and said voters will recognize a "Trojan Horse" meant to camouflage plaintiffs' attorneys' desire for bigger payouts.
"Voters are savvy and sick of initiatives that purport to be one thing but hide the motive of what [they're] trying to accomplish," Kinney said.
The medical industry's funding advantage could also hurt the initiative's chances – passing an initiative often requires more resources than fighting one.
Disagreements and bad blood between trial lawyers and the medical industry help explain why a compromise couldn't be reached. The fight reflects a deep rivalry. The medical industry's successful promotion of MICRA decades ago marked a historic turning point in the battle between businesses and tort lawyers, and that was soon mimicked in other states. Since then, California courts have upheld the law consistently. But attorneys continue to argue it's unfair. Notably, the Florida Supreme Court found that state's $1 million cap on malpractice pain and suffering payouts unconstitutionally discriminates against victims.