News

Lawyers, docs, insurers battle over MICRA — again

Medical personnel attend to a patient prior to surgery at USC Medical Center.

It’s not even on the ballot yet, but rival forces are gathering – again — over a plan to lift the decades-old cap on pain and suffering damages in medical malpractice cases.

The proposal, aimed at the November ballot, also cracks down on drug- and alcohol-impaired physicians and seeks to curb over-prescribing of medications.

 “There’s some high profile cases … of doctors who are drunk or high and cause damage,” said Jamie Court, president of Consumer Watchdog, an activist group financed in part by attorneys and the key backer of the proposed initiative.

“We combed through the medical board accusations against doctors and found one out of every five [accusations] deals with substance abuse either by a doctor or from a doctor over-prescribing,” he added.

Doctors don’t see it that way. And they believe the inclusion of drug testing in the initiative is a device to cover its real purpose  — getting lawyers a fatter paycheck.

“We’re gearing up to prepare to fight that fight,” said Molly Weedn, a spokesperson for the California Medical Association.

At issue is the Medical Injury Compensation Reform Act, or MICRA, signed by Gov. Jerry Brown in 1975, to limit pain-and-suffering awards – non-economic damages – to $250,000 in medical malpractice cases.  Economic damages, such as lost wages and future medical costs, are unlimited.

The proposed ballot initiative would tie the limit to inflation, which would raise the $250,000 limit lift it to about $1.1 million today, reflecting an inflationary increase of about 334 percent. In today’s dollars, the 1975 maximum of $250,000 would be worth about $57,400. To qualify the initiative, supporters need to submit 504,760 signatures of registered voters by March 24, according to the secretary of state’s office.

Brown signed the law amid complaints from doctors, surgeons, anesthesiologists and others in the medical community that their insurance premiums were spiraling out of control, in part because of what they described as excessive, high-dollar settlements in malpractice cases and frivolous lawsuits.  Doctors at the time said they faced mounting pressure from medical malpractice related costs and were being driven out of the state, and hospitals said they were on the brink of closure.

“That’s just complete fiction,” says Court. “Malpractice costs overall are like a fraction of one percent of medical costs, they’re insignificant—that’s claims and premiums.”

Under the state’s business and professions code, lawyers working on a contingency basis may collect sliding-scale fees up to 40 percent of first $ 50,000, a third of the next $ 50,000, a fourth of the next $500,000 and 15 percent of damages $600,000.

There have been numerous, unsuccessful efforts to amend MICRA in the Legislature over the years, and the issue represents an enduring Capitol political battle between lawyers, doctors, insurers and others.

Bracing for a November ballot showdown, physicians and healthcare insurers and others have loaned nearly $32 million to the opposition committee, Patients, Providers and Healthcare Insurers to Protect Access and Contain Health Cost.  Backers of the proposal reported about $400,000 on hand, according to the secretary of state.

Reaching a legislative compromise to amend MICRA is unlikely – at least so far. Negotiations piloted by state Senate Leader Darrell Steinberg, D-Sacramento, himself an attorney, have faltered between healthcare groups and consumer attorneys.

The constitutionality of California’s MICRA cap has been upheld in state courts, but in cases across the country judges have struck down similar laws. In 2012, the Missouri Supreme Court on a 4-to-3 decision overturned Missouri’s tort reform law as a violation of the state constitution’s right to trial by jury.

The $32 million in loans is viewed by supporters of the initiative as a scare tactic.

“I think it’s a way to try and deter people away from submitting signatures,” Court said. “But I’m sure they’ll come up with a lot of money.”

Eighteen percent of medically licensed physicians in California have substance abuse problems, according to a 2000 report by the California Medical Board, which regulates physicians in California.

For nearly 25 years the Medical Board’s Diversion Program provided confidential help to doctors with substance abuse problems, but the program ended in 2007.

“The public really doesn’t understand why doctors aren’t already drug tested,” Court said. Pilots, bus drivers and transportation workers are just a few professions that require drug testing to prevent putting the public at risk.

Weedn says the drug-related provisions apparently were included to gain support for the initiative, citing an interview with the LA Times in which Court was quoted as saying that “…the ultimate sweetener” for the proposal was adding the drug-testing language.

To improve its chances of passing, she contended, focus group testimony constructed the proposed ballot initiative rather than the opinions of medical professionals.

“We know this is really about the trial lawyers increasing the cap on MICRA, which you know would take money directly out of the healthcare system and put it into the pockets of trial attorneys,” she said.

The initiative also would also require doctors to consult the state’s prescription drug database before issuing substances to a patient.

Funding for that database, called the Controlled Substance Utilization Review and Evaluation System (CURES), was reeestablished last year by a bill authored by Sen. Mark DeSaulnier, D-Concord, by charging an annual $6 licensing fee on pharmaceutical prescribers.

Ed’s Note: Revises language in 21st-23rd grafs to clarify. 

 

 


  • Eric Andrist

    Molly Weedn of the California Medical Association makes me laugh! She just says the same things over and over and never has any real evidence to back up her propaganda.

    First, my disabled sister died from medical negligence in 2012. It took me over 8 months to find a lawyer to take my case with over a dozen turning me down because of MICRA. Because my sister was mentally retarded, she had no spouse, no children, no job, so in the eyes of the MICRA law, her life was nearly meaningless. Her case does not qualify for any economic damages, it only qualifies for non-economic damages (pain and suffering). That is what’s capped by MICRA at $250,000 (in 1975 valued dollars). What most people don’t realize is that NO ONE gets the full $250,000 because you first have to deduct the costs of the court case (which can soar over $100,000 or more) and the lawyer fees (which is about $75,000 on the $250k). That leaves about $75,000 for the victim. When you value it, though, in 1975 dollars, it comes out to about $17,000. If a victim were to live another 30 years (unfortunately my sister died), it would equate to about $47 a month for all their pain and suffering. Check out this video of Annette Ramirez and see if you think even the full $250,000 covers all her pain and suffering for the rest of her life: https://www.youtube.com/watch?v=ZgZy9a3HTqo

    I’d like to make some further points.

    1. Molly Weedn and the California Medical Association, et al., love to bandy around that if we raise the cap, it’s going to raise healthcare costs. Let’s assume for the moment that that’s true (even thought it’s not). What they’re saying is, screw the victims of medical negligence, their lives are meaningless. Who cares if they’ve been maimed for life or killed, they shouldn’t be able to sue because it’s going to raise healthcare costs. What other profession is protected by law when they harm or kill someone? If a pilot flies drunk and kills everyone on board a jet, no law is going to protect him or the airline from a negligence lawsuit. If a school bus driver gets in an accident with 30 children on board and harms or kills most of them, there’s no law that’s going to protect them from a negligence lawsuit. Why in the world do doctors and hospitals think they should be protected from lawsuits when they have been negligent????

    Take a look at this chart. It shows all the states in the US with each one’s basic cost for healthcare. I have labeled neighboring states, some with tort reform, some without. In each case, the states with tort reform have the higher costs! http://goo.gl/69vWGa

    2. The “doctors” think that adding the drug testing and CURES database into the MICRA initiative is “device to cover its real purpose.” How stupid is that? It’s not covering anything, the MICRA portion is sitting there plain as day! It is clearly a 3-part patient safety initiative. Even if it was added in hopes of getting the MICRA portion passed, that doesn’t make each portion any less important. All three components will make it safer for all of us when we go to the hospital. Why would anyone be against that?? It’s not like they threw in a component that has nothing to do with patient safety like giving lawyers a free trip to the Bahamas with every court case! So often bills do have hidden components that have nothing to do with the main portion of the bill, but this one is not like that. All three components are important patient safety issues.

    So the doctors can bandy about their “sweetener” and “window dressing” and “device” lingo all they want, but voters aren’t stupid. The ballot initiative is very easy to read, in plain english and the MICRA component is right there, not in any way hidden from view. You can read the initiative here: http://goo.gl/OtXGBK

    Imagine the doctors gearing up to fight patients over safety issues just so they can protect themselves from litigation should they be negligent. For shame!

    3. Gov Brown has come out and admitted that MICRA never worked, and that the “scare” that caused it to be put into law was no scare at all, it was all about Argonaut insurance doing poorly in the stock market. Here’s an article about it: http://goo.gl/Zyan5j

    Even Senator Barry Keene, who wrote the law in 1975 has come out in favor of raising the cap: http://goo.gl/TC4D1C

    4.The “unsuccessful efforts” to raise the cap in the past failed because the court was still under the impression that the law was needed to keep doctor’s malpractice insurance premiums low. However, MICRA has NEVER lowered their premiums. Here’s Insurance commissioner Dave Jones talking about it, and explaining how it’s actually Prop 103, instituted in 1988, that regulates their malpractice insurance premiums: http://goo.gl/xWnjdq

    5. 22 states have no medical tort reform laws and 12 of those have found it to be UNCONSTITUTIONAL. This is what we need to do in California, but the medical and insurance industries are a powerful lot and won’t have it. That’s why we’re trying to at least raise the cap at this point so victims can get their constitutional right to a jury trial. Negligent doctors and hospitals have gotten off scott free for far too long.

    6. Molly Weedn talks about the focus groups constructing the proposed ballot initiative instead of medical professionals. Well duh! It’s those very focus group Americans who suffer at the hands of negligent doctors. Why in the world should the doctors be constructing the ballot initiative???! Is she crazy?

    7. She wants people to think that the trial attorneys are the bad guys here. While there are a lot of skeevy attorneys out there, if it weren’t for the trial attorneys, we’d have no way to take our cases to court and hold negligent doctors and hospitals accountable. Lawyers take these cases on a contingency basis, they front all the costs to bring the case and take on all the risk of losing every cent they put into it if the case is lost. Why SHOULDN’T they be paid handsomely for taking that risk? On the flip side, the doctor’s attorneys have no cap on what they can charge, and their fees generally are paid by the insurance companies. Victims have to scrounge and beg and plead for help while the doctors sit back and let their insurance company do it all and pay for it all.

    People need to stop listening to the propaganda of the medical and insurance industries. The insurance industry is rolling in the profits…very little of their income gets paid out in litigation. Doctors are swindled into paying astronomical insurance rates; one of the biggest insurance companies, The Doctors Company, is run by the doctors themselves!

    Doctors need to find their consciences and step up and do what’s right. The information is out their that their being misled and they’re not doing right by their patients. A very small percentage of doctors are causing all the negligence, but are ruining it for the whole lot.

    And finally, how about this notion. Instead of penalizing victims of medical negligence a second time by making it impossible for them to get to court, how about doctors and hospitals just start being safer and stop making so many negligent errors? Upwards of 440,000 people die from medical error every year.

    That’s inexcusable.

  • Connie

    What Eric said about the CMA’s repetitious, unsubstantiated claims–except they don’t make laugh at all. A practitioner injured my teen-age son BOTH by performing a negligent experimental surgery AND by negligent narcotic prescribing afterward, to treat the severe chronic pain she caused. Because he was still a student with no income and was covered by our health insurance, the only possible damages were non-economic. Yet even though the Medical Board investigated, the regulatory board determined negligence, and my son was permanently harmed, MICRA made it “economically unfeasible” for any attorney to take his case, effectively barring him any access to the justice system. Changes to this unjust law that makes medical practitioners a privileged class in California are long overdue.

  • Anonymous

    The doctors and insurance companies that support this are pure evil.. How many people need to die before doctors are held responsible for their negligence? My older brother is dead because these morons who are supposed to be there to help people were negligent and released him saying everything was fine and that the

Support for Capitol Weekly is Provided by: