Opinion: MICRA impedes justice for victims of medical negligence

I read with great interest the Capitol Weekly’s Dec. 16 article “MICRA: Long-simmering dispute looming in Capitol.”  My interest in MICRA, California’s law that limits pain and suffering compensation to $250,000 in medical malpractice cases, is twofold: I am both a physician and the son of a victim of profound medical malpractice. I have firsthand experience with the implications and practical effect of MICRA.

From our family’s perspective, the MICRA cap on pain and suffering is a massive impediment to obtaining justice when families like ours see a loved one become the victim of medical negligence.

My mother’s case is easy to understand. Her physicians failed to show up when she developed acute abdominal pain following an elective orthopedic procedure. When she died, the hospital deleted critical records in a presumptive attempt to keep our family from learning the truth.  

A few days after my mother was buried, we requested a conference with her physicians and nurses. Our request was denied, and we were referred to Stanford Hospital’s risk management office. Our family requested our mother’s medical record six times, only to be told the information we were requesting didn’t exist or was not part of her legal medical record. It was only after the Public Health Investigator identified that medical notes had been deleted that we received a letter from the hospital’s attorney requesting a “resolution.”

Our family believes our mother’s physicians deceived us and that the hospital committed fraud to deliberately obstruct and obfuscate our ability to learn the truth. My surgical mentors counseled me to “get the best lawyer you can.”

My sister and I contacted nearly 30 attorneys and were repeatedly informed about the practical aspects of MICRA. The conversations would always begin the same: “How old was she, and was she working?” Once we told these lawyers she was 72 years old and retired, they would decline to represent our family. Under MICRA, it takes as much as $100,000 to bring a medical malpractice case to trial. But if a victim is unemployed or young or old, an attorney could expect to recover less than those costs. From an attorney’s perspective, a medical malpractice case without economic or punitive damages is economically unfeasible no matter how egregious the circumstances.

 The practical implication is discouraging. If you are very young, retired, or unemployed, it is nearly impossible to seek justice even if the malpractice is obvious and, as in our mother’s case, horrific. The chance that these cases will go to trial is even more remote. MICRA effectively denies the most vulnerable members of our society – the elderly, the young, the disabled and anyone else lacking a salary – any chance of seeking justice, of learning the truth and obtaining accountability.

This isn’t just a profound injustice to huge portions of our population, it is morally and ethically repugnant.   

Our family takes particular exception to the comments of vice president of governmental affairs for the Community Clinic Association of Los Angeles, Louise McCarthy. She states, “This discussion needs to be about patients, period” and “the argument has not been about changing the impact on the patient, it (is) about changing the dollars the attorney could collect.”

Ms. McCarthy couldn’t be further from the truth.  This is a discussion about accountability and justice, which the public deserves. This is all about the patients, period.

 The comments of Dustin Corcoran, CEO of the California Medical Association, are even more troubling. “The trial attorneys want to legislate their way to a big pay day.  (He doesn’t) think it’s much more than that to them.” Our family interprets Mr. Corcoran’s comments as a gross misrepresentation of the issue. The MICRA dispute is about learning the truth and obtaining justice when the health care establishment makes egregious errors and refuses to be accountable.

We would remind Ms. McCarthy and Mr. Corcoran about the central tenet of public health: Social Justice.  

Social Justice is predicated on the idea that every member of society should have an opportunity at justice, no matter what their age or economic status is. The time has come to restore the balance of power between the health care establishment and the patients they serve.

From our perspective, the argument advanced by some that MICRA reform is about lawyers enriching themselves is hypocritical, as the same argument can also be applied to a health care industry that would prefer not to be held accountable when serious medical errors occur.