Voters May Decide Medical Malpractice Cap

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  • February 18, 2014

Lawyers and consumer groups are getting signatures for a ballot measure to increase 1975’s pain and suffering limit of $250,000. Doctors and insurers have already raised $33 million to fight it.

SACRAMENTO — A protracted political battle over California’s medical malpractice law may be coming to a new front: the voting booth.
For decades, trial lawyers and consumer groups have railed against limits on certain damages in malpractice cases, arguing that such restrictions deny victims fair compensation for grisly medical mistakes.

Insurance companies, doctors and other healthcare providers have been equally vigorous in defending the law, saying it is crucial to controlling costs and maintaining the availability of care.

Now, the lawyers’ side has proposed a ballot initiative that would raise the limits on malpractice awards for pain and suffering. The measure would appear on the fall ballot, but both camps are already amassing war chests and firing opening shots in what would certainly be a bruising and costly fight.

“Visions of dollars signs are dancing in the heads of political consultants up and down the state,” said Bruce Cain, professor of political science at Stanford University. “This is a big-time bonanza for them.”

If the measure makes the ballot, it will unleash a torrent of negative advertising about greedy lawyers and negligent doctors.

The initiative’s backers have until March 24 to submit signed petitions to place their proposal on the ballot.

California’s Medical Injury Compensation Reform Act was crafted in 1975, when Gov. Jerry Brown convened a special legislative session to address skyrocketing liability insurance costs that fueled concerns doctors would flee the state.

Under the law, patients who sue for malpractice can recover no more than $250,000 for noneconomic damages such as pain and suffering. The law also limits attorneys’ fees based on damages. There is no cap on economic damages, such as compensation for medical bills or lost wages.

Physicians and insurance companies say the limits have kept liability insurance rates in check. Changing the law, they assert, could increase those rates enough to put community clinics out of business.

And many healthcare providers, already worried about the federal Affordable Care Act’s effect on their bottom lines, fear a surge in healthcare costs as doctors rely on more tests and procedures to guard against lawsuits.

Trial attorneys argue that medical malpractice premiums are a tiny fraction of healthcare spending. They say the damage limits, which have not been adjusted for inflation, make it economically impossible for them to take on many malpractice cases.

The lawyers have unsuccessfully challenged the limits in the courts and the Legislature.

The law’s defenders, in the meantime, have expanded their coalition of insurance companies and physicians to include other medical providers such as Planned Parenthood and community clinics, as well as some labor groups. A dedicated advocacy organization, Californians Allied for Patient Protection, focuses on fending off those who want the law changed.

Brian Kabateck, past president of Consumer Attorneys of California, said his industry’s political clout in the Capitol was at stake in the push to revamp the law.

“At some point, our members feel, you just have to turn and fight,” Kabateck said.

The proposed measure would adjust the pain-and-suffering cap to account for inflation since 1975. That would raise it to about $1.1 million, various analyses show. The cap would also be indexed to future inflation rates.

This year, there’s a new spin on the old conflict: The proposal also would require hospitals to randomly test doctors for drug use and require physicians to check a statewide prescription drug database before prescribing certain medications, to clamp down on abuse.

So far, California’s political leaders have mostly stayed out of the fray. Brown has made few public comments about the push to alter the law, which he signed in his first term as governor.

State Senate leader Darrell Steinberg (D-Sacramento) has said he’s looking into possible legislation that could avert a nasty ballot fight.