Senate rejects malpractice cap based on California model law

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Press Enterprise (Riverside, CA)

The Senate on Wednesday rejected legislation to limit how much money medical malpractice victims can receive.

Its action could have a major impact on California, where lobbyists are spending millions of dollars over the fate of a 28-year-old system that caps punitive damages at $ 250,000 per person. Few states have such a limit, and California has become the model for a stream of legislation being considered around the country.

“If Congress doesn’t agree with us, very soon we will have intense pressure to raise our payment cap. It would undo decades of effective control,” said Dr. Ronald Bangasser, a Redlands family-practice doctor with the Beaver Medical Group and president of the California Medical Association.

Bangasser will head to Washington, D.C., on Sunday to begin a week of lobbying for malpractice legislation.

But Wednesday’s decision encourages others like Linda Roberts Ross of Yucaipa. Inspired by her mother, who died in 1991 due to medical negligence, Ross is now a lawyer handling two malpractice cases with her Palm Desert law group.

“How are you supposed to inflict financial punishment on a big corporation . . . with a $ 250,000 cap? They suffer no consequences for their actions,” said Ross, who had called lawmakers’ offices to lobby against the proposal.

Ross and Bangasser are among various Inland advocates on both sides of the malpractice insurance overhaul. They reflect a national struggle to address the country’s strained system, a political battle that’s likely to grow in coming months.

The Senate bill got 49 votes — 11 less than what’s needed to break a filibuster. But Congress and at least 30 states are considering more bills to address skyrocketing premiums that have prompted doctors to close their offices, avoid high-risk specialties or go on strike.


Physicians, hospitals, medical associations and insurance firms generally align with Republicans, who are spearheading most of the state and federal legislation. They say change is needed to stop frivolous lawsuits and ease a health-care crisis.

On the other side are trial lawyers, patient-rights groups and many labor unions, who tend to back Democrats. They say limits would further benefit profit-hungry insurers and unfairly shield bad doctors from significant financial punishment.

Legislators and activists agree that California’s malpractice insurance rates are low in comparison to those of other states. Doctors in California, on average for all medical specialties, pay $46,000 less annually than those in Florida, New York and Michigan, according to data compiled by several insurance companies.

Numerous areas, including Arizona and Pennsylvania, have seen their premiums soar more than 200 percent in a year. To cope, some doctors have shied away from risky medical procedures or avoided litigation-prone specialties such as cardiology, neurosurgery and OB/GYN.

Last July, the highest-level trauma hospital in Las Vegas closed for 10 days because of spiraling malpractice insurance premiums. Critically ill or injured patients were diverted to two hospitals in San Bernardino County.

Such problems have generated a stream of state and federal bills.

In particular, the defeated Senate proposal had mirrored California’s Medical Injury Compensation Reform Act, or MICRA. That law limits non-economic damages — commonly known as pain and suffering awards — to $ 250,000 per person. The amount has not changed since the measure was enacted in 1975, and there have been no efforts to raise the limit this year.

But the state law has other key benefits, said Bangasser, 52.

Those provisions include triple compensation for a victim’s medical costs and unlimited payments for current and future lost wages. These elements apply to children and retirees as well, Bangasser said.

Under the state law, physicians make periodic payments — not a lump sum — on economic damages awarded to a patient. This stipulation limits the percentage that lawyers can take out of these awards. Like the bills being considered in Congress, California’s system also sets specific deadlines for malpractice suits to prevent prolonged cases.


Unlike Bangasser, Ross views California’s system as haphazard and unfair to victims of medical negligence.

Her mother, Barbara Jean Roberts of Lake Elsinore, died of a pulmonary blood clot after waiting several hours for treatment in a Kaiser Permanente emergency room. The $150,000 settlement her family received in mandated arbitration doesn’t do justice, she argued.

“This law is a sweetheart deal that doctors and insurance companies entered to keep down rates,” said Ross, 47. “All it did was stomp all over medical malpractice victims and their family’s rights.”

Ross also criticizes how California allows judges to use evidence of a patient having other sources of insurance and health care to reduce non-economic awards. And she notes how lawyers have turned down more malpractice cases because the anticipated damages are not enough to cover their legal fees.

Furthermore, backers and detractors have long debated whether the system really succeeds in controlling malpractice insurance premiums.

Consumer advocate Jamie Court attributes California’s stable rates to Prop. 103. The measure included a one-time reduction of 20 percent for all types of insurance, including medical malpractice. It also froze insurance rates for a year. And it allows consumers to challenge rate increases, which must be approved by the state insurance commissioner.

MICRA has been like a Holy Grail, but it’s been more religion than fact,” said Court, who works with the Foundation for Taxpayer and Consumer Rights, a nonprofit organization based in Santa
Monica. He contends that from 1975 until 1988 — when voters approved Prop. 103 — insurers were free to raise rates as high as they wanted to maximize profits.

Here are average premiums in 2003 for medical malpractice insurance across several specialties:

Los Angeles / Dade County, Fla. / Long Island, N.Y. / Wayne County, Mich.
Family practice (nonsurgical): $ 14,556 / $ 58,901 / $ 15,824 /$ 34,093

Cardiovascular surgery: $ 48,624 / $ 249,196 / $ 63,793 / $ 141,308

Neurosurgery: $ 78,680 / $ 326,220 / $ 171,155 / $ 176,103

OB/GYN: $ 69,660 / $ 249,196 / $ 109,934 / $ 115,628

Pediatrics: $ 18,560 / $ 45,308 / $ 15,824 / $ 27,800

Ophthalmology: $ 23,072 / $ 65,697 / $ 20,426 / $ 20,957


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