It has been 39 years since California passed the Medical Injury Compensation Reform Act (MICRA), and, finally, its chilling effect on the rightful redress for the victims of medical error is being exposed to prospective voters as the unjust law that it is.
Voters will decide in November whether to adjust the caps on medical malpractice judgments for people who have been harmed by medical errors. But the argument in favor of correcting a gross injustice is complicated by tangential medical oversight measures that have been included in the ballot proposition.
Originally, as we blogged last year, MICRA was promoted as a way to address what some people perceived as a malpractice insurance “crisis” that was boosting insurance premiums and driving doctors out of the state. It capped the amount plaintiffs could recover in damages at $250,000, and it wasn’t indexed to inflation. In 1975 dollars, $250,000 is worth less than $58,000 today. If it had been inflation-indexed, that current cap would be $1.1 million.
Last month, the advocacy organization Consumer Watchdog reported that the medical malpractice insurance industry and hospitals are subsidizing the campaign against what it supports as a patient safety measure. Consumer Watchdog said those interests have spent more than $27 million to oppose Proposition 46.
No wonder. Denying people their rights has been good for the medical and insurance industries. They like to repeat the old, demonstrably wrong line that malpractice caps like MICRA prevent frivolous lawsuits and curb the practice of defensive medicine, in which doctors overtreat for fear of being sued for not doing their job.
As Los Angeles Times columnist Michael Hiltzik was quoted in our blog last year, “… the most frequent injustice in malpractice cases involved not undeserving patients collecting payments, but the opposite, deserving patients getting nothing.”
“Malpractice litigation,” he said, “has indeed failed to serve patients and their doctors. The cost of a lawsuit, which includes extensive expert witness fees, has become exorbitant for both sides, and the typical case takes five years to resolve.”
“… Simply padlocking the courthouse to whole categories of plaintiffs doesn’t meet the fairness test. … It’s time to bring this … law into the 21st century, and fix the malpractice system so that it actually works.”
The ballot initiative, known as the Troy and Alana Pack Patient Safety Act, would raise the malpractice cap to at least $500,000, and to index it to inflation. Bob Pack is the father of Troy and Alana. As young children, they were killed by a drunk and drugged driver who had gamed the system by “doctor-shopping” to get physicians to overprescribe him thousands of pills.
“Even as America experiences an epidemic of up to 440,000 deaths a year due to preventable medical errors,” Pack said in the Consumer Watchdog report, “those who hold our lives in their hands are more interested in protecting dollars and bad doctors rather than taking reasonable steps to save lives.”
As explained by Consumer Watchdog, the medical malpractice insurance industry is “incredibly” profitable, and has paid out in malpractice claims as little as 10 cents of every dollar collected in insurance premiums. According to its report, “Malpractice insurers’ net income is roughly double what is collected by most other lines of insurance, including auto and home policies.”
Some supporters of malpractice reform are troubled that the proposed initiative deals with more than just caps on judgments that are indexed to inflation. The proposition includes a physician oversight measure that, although intended to protect patients, could dissuade voters opposed to what they see as over-regulation but who otherwise would vote to correct decades of legal malpractice injustice.
Proposition 46 would:
- Adjust the state’s cap on malpractice damages, giving the cap the same value it had when it took effect in 1975, while maintaining the existing cap on attorneys’ fees.
- Require physicians to check the state’s existing prescription drug database before prescribing certain addictive drugs to first-time patients, in order to curb doctor-shopping drug abusers.
- Require random drug and alcohol testing of doctors with admitting privileges at California hospitals, to protect patients from being treated by impaired physicians.
Like other regions, California patients are vulnerable to impaired doctors. According to Consumer Watchdog, the state’s medical board says that nearly 1 in 5 five doctors will abuse drugs or alcohol during their lifetimes.
But whether this reality undermines or assists the effort to revise the state’s deficient medical malpractice laws remains to be seen.