Category Archives: California

Medical liability damages cap upheld

The nation’s leading medical liability reform law has been upheld yet again in a California court of appeal, with the court finding that the state’s cap on noneconomic damages is constitutional. It’s another victory to ensure physicians can afford to stay in practice and continue to provide care to the patients in their communities. In Chan v. Curran, the plaintiff attempted to prove that the non-economic damages cap under Medical Injury Compensation Reform Act (MICRA), California’s historic tort reform law, should be struck down. The cap is set at $250,000. The plaintiff claimed the MICRA cap was unconstitutional for a few reasons: MICRA was put in place to tamp down California’s medical liability insurance crisis in the 1970s, but times have changed and the crisis no longer exists. The court rejected this argument, noting that the Supreme Court of the United States rejected a similar argument. The noneconomic damages cap discourages attorneys from taking cases on contingency, so it limits access to the courts. The court held that parties in civil cases are not guaranteed the right to counsel. MICRA interferes with the right to jury trial. The court rejected this argument based on previous cases that held the same….

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Offer SGR Solutions Not Complaints

The American Medical Association (AMA) is doing a disservice by not weighing in on how to pay for repealing the sustainable growth rate (SGR) formula for physician reimbursement under Medicare, a member of Congress said Thursday. During the second day of a hearing on repealing and replacing the SGR, Rep. Larry Bucshon, MD (R-Ind.), a cardiac surgeon and member of the House Energy and Commerce Health Subcommittee, asked Barbara McAneny, MD, chair of the AMA’s board of trustees, if the AMA could offer “substantial possible pay-fors” to cover the cost of the repeal. The Congressional Budget Office last year put the cost at about $140 billion over 10 years. But McAneny, an oncologist in Albuquerque, N.M. who testified on the AMA’s behalf, declined to do so. “Within the healthcare sector, so many are struggling now to keep the doors open, so for us to come up with specific pay-fors may not be as useful until there are some guidelines set up by Congress,” she said. “The AMA stands ready to assist and help by weighing in on any specific suggestions; we don’t really have the ability to give you specific pay-fors, because the devil is in the details.” Bucshon expressed…

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Congressman to AMA: Offer SGR Solutions Not Complaints

The American Medical Association (AMA) is doing a disservice by not weighing in on how to pay for repealing the sustainable growth rate (SGR) formula for physician reimbursement under Medicare, a member of Congress said Thursday. During the second day of a hearing on repealing and replacing the SGR, Rep. Larry Bucshon, MD (R-Ind.), a cardiac surgeon and member of the House Energy and Commerce Health Subcommittee, asked Barbara McAneny, MD, chair of the AMA's board of trustees, if the AMA could offer "substantial possible pay-fors" to cover the cost of the repeal. The Congressional Budget Office last year put the cost at about $140 billion over 10 years. But McAneny, an oncologist in Albuquerque, N.M. who testified on the AMA's behalf, declined to do so. "Within the healthcare sector, so many are struggling now to keep the doors open, so for us to come up with specific pay-fors may not be as useful until there are some guidelines set up by Congress," she said. "The AMA stands ready to assist and help by weighing in on any specific suggestions; we don't really have the ability to give you specific pay-fors, because the devil is in the details." Bucshon expressed...
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California’s Proposition 46 and the Uncertain Future of Medical Malpractice Liability Reform

On November 4, 2014, Californians voted against Proposition 46, an unprecedented statewide ballot initiative that would have, among other things, raised the $250,000 cap on noneconomic damages to $1.1 million and indexed it to the rate of inflation in future years. The margin was significant — 67 percent voted against it. For nearly 40 years, noneconomic damages, which entail payments to patients for pain and suffering resulting from medical malpractice (as opposed to economic damages such as lost wages and medical costs), have been at the forefront of debates over the U.S. medical liability system. Currently, 22 states have caps on noneconomic damages of varying sizes in place. If it had passed, the ballot initiative would have raised the cap on noneconomic damages in California from among the most restrictive to the least restrictive among all states with caps. Opponents of Proposition 46, and supporters of malpractice reform more generally, argued that raising the noneconomic damages cap would have increased malpractice awards and subsequently malpractice premiums, which would be passed on to patients and insurers as higher costs. Proponents countered that the $250,000 cap is outdated and that liability is necessary to compensate patients and provide physicians with incentives to…

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Malpractice Insurance Premiums Nudge Down Again

For the seventh straight year, malpractice insurance premiums have decreased for three bellwether specialties, and even for sticker-shocked obstetrician-gynecologists on Long Island in New York, according to an annual premium survey released this week by Medical Liability Monitor (MLM). Rates quoted by a malpractice carrier called Physicians’ Reciprocal Insurers for obstetrician/gynecologists in the New York counties of Nassau and Suffolk, east of Queens, went from $227,899 in 2013 to $214,999 in 2014, a decrease of almost 6%. However, this rate continues to be the highest quoted by any carrier in any state for this specialty. Overall, malpractice premiums decreased on average by 1.5% in 2014 for obstetrician/gynecologists, internists, and general surgeons, which is slightly less than the 1.9% decrease in 2013. By specialty, rates fell 1.6% for internists, 1.3% for general surgeons, and 1.7% for obstetrician/gynecologists. Since 2008, overall rates for the three specialties have fallen by 13%, MLM said. To many physicians, this slow decline represents little comfort because it was preceded by an era of rate spikes: Premiums increased more than 20% in both 2003 and 2004, and about 9% in 2005 (rate increases in 2006 and 2007 were less than 1%). “We haven’t come down as far…

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Poorly Crafted State Proposition 46 Puts Doctors on Defense

The lawyers who put together and funded Proposition 46 might have been too clever for their own good. The main motivation for the measure is inescapably clear: to raise the ceiling on “noneconomic damages” in medical malpractice lawsuits — in plain language, “pain and suffering” — from $250,000 to $1.1 million. That cap was set in 1975, and has not been adjusted for inflation. A very credible case could be made that it’s now so low that it makes it difficult for certain victims to seek redress in court. But this measure overreached in a decidedly cynical way. Its proponents have openly admitted that the provision for random alcohol and drug testing of doctors was added as a political sweetener. Voters should not be fooled by the title and summary put together by Attorney General Kamala Harris’ office that focuses on the testing as if it were the centerpiece of the measure. It is not. (Harris has been a less-than-stellar steward of ballot titles and summaries throughout her term, often skewing them with loaded language for political effect. Her descriptions of everything from pension reforms to tax increases have been so egregiously unfair that they raise the question of whether…

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Proposition 46 is No Cure-All

Physicians should not get drunk or stoned, especially before operating on patients. They ought to make sure their patients need prescriptions for ailments, not to feed addictions. And policymakers should consider updating the 1975 law that capped damages in medical malpractice cases. But the cure to all of the above is not Proposition 46, an initiative on the Nov. 4 ballot that would disrupt health care in California, and has reignited the war between physicians and plaintiffs’ lawyers. Consumer Watchdog and allies including plaintiffs’ lawyers have raised less than $5 million to support Proposition 46. Physicians and their allies, including medical malpractice insurance companies, have amassed $55 million to kill it. Aware that some voters distrust lawyers, Consumer Watchdog added sweeteners to the initiative to obscure the initiative’s main point, that being to open the way for bigger awards in medical malpractice lawsuits. One enticement would require drug testing of doctors, which evidently polls well. In our view, however, the cynicism implicit in the drug testing provision is reason enough to oppose Proposition 46. If doctors are drug-addled, other doctors and nurses have a duty to report them. If doctors make horrible mistakes during surgery, there might be cause for…

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Vote No on Proposition 46

Supporters of Proposition 46 on the Nov. 4 ballot must think the California voter is really stupid. Proposition 46 is a measure put on the ballot by trial lawyers who want to raise the limit on noneconomic damages in malpractice cases. But the proponents must have found out that the measure didn’t poll well, so they added two other unrelated matters to it in a strategy so obvious that it’s almost laughable. We certainly understand why they would want to raise the limit on the so-called “pain and suffering” designation, even if we don’t agree. The limit of $250,000 was established back in 1975 with the approval of then-and-now Gov. Jerry Brown. Proponents of the measure say that the cap should be adjusted for inflation, which would move it up to $1.1 million. But nonpartisan studies have shown that such a move up would have a damaging impact on already high health care costs. That’s why every attempt to raise the limit has gone nowhere in the state Legislature. So proponents figured, why not dress it up with two other proposals and present the entire package to the voter? Maybe then, they reason, we can sneak through the higher malpractice…

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Med-mal caps in the crosshairs as trial lawyers attack California’s landmark act

SACRAMENTO, Calif. (Legal Newsline) – A landmark act constraining the amount of money plaintiffs attorneys and their clients can reap from medical malpractice lawsuits has come under fire by California trial lawyers – an expensive battle that may end up spreading to other states. Enacted in 1975, the Medical Injury Compensation Reform Act, which caps non-economic damages at $250,000, has become a model for more than half the states in the country. The movement to inflate the MICRA cap gained substantial momentum on May 15, when a ballot measure, known as Proposition 46, netted the 500,000-plus signatures required to qualify for the November ballot. Prop 46, which seeks to quadruple the current cap on medical liability lawsuits to $1.1 million with annual increases going forward, has spurred Golden State watchdog groups such as California Citizens Against Lawsuit Abuse into action against the forces they believe are pushing the initiative forward – trial lawyers. “The trial lawyers are the ones most solidly behind it,” CALA Executive Director Tom Scott said. “They’re the ones that paid to get the signatures on the ballot. The trial lawyers are the ones that want it passed, period.” Consumer Attorneys of California, the lead faction backing…

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California’s Malpractice Ruse

AG Kamala Harris helps the trial bar try to sneak one past voters. One of California’s few emollients for employers is its limit on “pain and suffering” medical liability judgments, which has improved access to medical care and held down health costs. But look out: Plaintiffs lawyers abetted by Attorney General Kamala Harris are now trying to gut the cap with a ballot initiative dressed in patient-protection garb. In 1975 on his first tour as Governor, Jerry Brown signed legislation limiting attorney fees and non-economic damages on medical malpractice claims to $250,000. Lawsuits were driving up malpractice premiums, causing thousands of California physicians to close their practices and insurers to drop coverage of high-risk specialties. While plaintiffs can still recoup unlimited compensation for future medical costs and lost wages, the law has deterred attorneys from filing meritless lawsuits and reduced liability insurance costs. A 2004 article in the Archives of Internal Medicine reported that California malpractice premiums have increased by less than 3% annually, or one-third of the rate nationally, and have fallen by 40% in constant dollars since 1975. Annual liability premiums for an OB/GYN in Los Angeles are $49,804 compared to $140,092 in Chicago and $176,005 in Long…

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