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MICRA: Unaccountability by Another Name

by: Brian Leubitz

Tue Jan 18, 2011 at 13:49:24 PM PST

I've written a bit about MICRA in the past, but here it is in short form. It puts a cap of $250,000 on non-economic damages for victims of medical malpractice. While that may sound like a lot, in fact it has killed medical malpractice in the state.  Cases with the slightest bit of complication, or those that go to trial can cost over $100,000 to bring, and the limited recoveries mean that attorneys can't afford to bring the cases. It just doesn't make economic sense.  So for cases where the victim does not have a high expectation of future income (i.e. full-time parents, children and the elderly), they just never get the opportunity to hold the perpetrators accountable.

The $250,000 cap has been steady since the 1970s, but the supporters say it cannot be raised for fear that we will kill the medical industry with insurance premiums.  Except for the fact that the promised decreases in premiums never really came until Prop 103 regulated the insurance industry.  The problem with malpractice insurance isn't malpractice law, it's the insurance industry.

Lucinda Finley, Raichle Professor of Law at the State University of New York at Buffalo Law,  said that study after study shows that caps on medical malpractice awards, while hurting the severely injured, do not lower malpractice premiums. "Caps do not lead to reductions in insurance premiums for doctors; there is no evidence to support any claim that they do or will lead to reduced premiums," Ms. Finley said, citing a major report issued by the federal General Accounting Office in late August 2003. "Spikes in insurance premiums are caused much more by market and investment cycles in the insurance industry and insurance-industry underwriting and reserve policies than by any trends in the tort system, as numerous studies have concluded." (Anayat Durrani)

The cap doesn't change insurance rates, but does take away the accountability that the tort system provides.  The limit is hurting victims of malpractice and their families.  That case was made clear in an op-ed on Capitol Weekly last week:

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.
*** **** ***
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. (CapitolWeekly)

I highly recommend you read the full op-ed on MICRA.   The author's case is a study in how medical professionals can cover up the truth to cover their own hides.  Look, the point of the tort system, whether the AMA will acknowledge it or not, isn't to extract large sums of money, rather it is a consumer protection of last resort. It serves as a policing mechanism for those doctors who have failed their patients.  All too often, self-regulation has failed in this country. And without the tort system, victims really have no recourse.

So, as it appears the discussion of MICRA reform has begun, let's hope we don't get caught up in the tired old trope of doctors vs lawyers, and try to remember the real goals of our legal system.

Brian Leubitz :: MICRA: Unaccountability by Another Name
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Tort "Reform" - always denies citizens the constitutional rights (0.00 / 0)
The founders understood that the right to seek redress of grievance in a court of law is a fundmental cornerstone of a free and democratic society, and often the sole check on the powerful - be it individual or government.

Every time you see an attempt on tort reform you are seeing the powerful interests attempt to "reform" our constitutional rights and deny a person their right to seek redress of a grievance.  Of course, it's always the little guy, they're barring from the courtroom.  Those with wealth and power, corporate interests - they're in court every damn day - courts we ALL support through our tax dollars.

MICRA caps are but one (albeit an important one!) instance of a law that has a bad outcome for citizens.

Here's a bit of reform that would benefit all of us - repeal corporate personhood.

Slippery slope (5.00 / 1)
George Lakoff talks about the concept of slippery slope political issues. Tort reform is one of the examples he uses. As Laura points out, it limits access to the judicial system for the little people--and not just for medical malpractics, but for workplace injuries, environmental contamination, and defective product injuries--all situations where big corporations would have to pay out for the harm they've caused. Corporations don't like to pay out for damage they've caused--whether the corporation is Health South or BP. So they donate to Republicans who promise to stop this leakage in their bottom line.

Trial attorneys, on the other hand, are one of the larger donor groups to the Democratic Party. So, by keeping them from making a living by protecting the average citizen, Republicans get a twofer, they cut donations to Democrats.

And, of course, everybody has heard of unreasonable payouts in court. The right-wing media loves to repeat those stories. They're less eager to talk about the multinational corporations who've maimed and injured innocent customers. They wouldn't, after all, want to anger advertisers. So the constant harping on "reform" sounds just and reasonable. Then, when a refinery kills workers and pollutes your town, a hospital kills your child, a prescription drug damages your health, a defective tire kills your spouse, an insurance company refuses to pay for your hurricane damage, and so on--you suddenly recognize who benefited from this so-called "reform." Hint: It wasn't us.

Choose between torts and regulation (4.00 / 1)
Torts are the free market form of regulation. They're messy and they don't make people truly whole, nor are they necessarily just to anyone.

I'd be happy to trade the tort system for a single payer, so that anyone with a health problem for any reason gets their health needs taken care of, and a strong reporting and regulatory regime for medical mistakes.

People are injured by medical errors all the time, and only the most horrible outcomes are economic for a lawsuit. Note that the outcome is more important than the doctor's true culpability.

And for all the concerns about big judgements: I've never come across a high award case involving medical bills or medical malpractice where I would willingly trade places with the plaintiff, even with a large award.

Fry, don't be a hero! It's not covered by our health plan!

Generally, yes (0.00 / 0)
I think a full single payer health care system (and strong regulation to ensure physician quality) is favorable to a tort system. However, neither seems to be something that will happen in the immediate future.  For now, the tort system is the best we have.

I think?

[ Parent ]
You'll Need Torts with Single Payer (0.00 / 0)
Because even with single payer, there will be malpractice, malfeasance, accidents, etc...  Both need reform.  Torts are up now.

[ Parent ]
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