| 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.
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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.