Modernizing MICRA

To head off a November ballot measure that would have eliminated MICRA and its long-standing success in reforming California’s medical liability system, an agreement was announced to modify MICRA for the benefit of patients and physicians.

Passed in 1975 as landmark legislation, MICRA withstood the test of time and became a model for medical liability reforms across the U.S., offering long-term predictability and affordability for California’s healthcare providers.

MICRA currently provides for recovery of non-economic damages up to $250,000. The agreed-upon proposal, AB 35, will increase the existing limit to $350,000 for non-death cases and $500,000 for wrongful death cases, effective January 1, 2023. This will be followed by incremental increases over 10 years to $750,000 for non-death cases and $1,000,000 for wrongful death cases, after which a 2 percent adjustment will occur to account for inflation.  

“We have long advocated for policies that protect both patients and the essential guardrails established under MICRA that ensure broad-based access to care for all Californians,” said Lisa Maas, Executive Director, Californians Allied for Patient Protection. “[This] announcement demonstrates a unified commitment by all stakeholders to put the interests and wellbeing of Californians first.”

Elected officials, health care providers, consumer attorneys and patient advocates all came together to collaborate on the future of medical liability for California patients — a laudable effort.

This proposal, recently passed by the legislature and signed into law by California’s Governor Gavin Newsom, will avoid a costly ballot measure later this year.

To read more about modernizing MICRA and its continued success in stabilizing California’s health and medical liability system, click here.

The Relevance of Practitioner Subspecialties in Expert Witness Testimony

In Michigan, an appellate court decision highlights the importance of maintaining requirements that expert witnesses represent the same subspecialty of medicine, ensuring they possess accurate knowledge to weigh in on the case.

The case stems from an alleged breach in the standard of care by a diagnostic radiologist who ordered a CT scan of a patient during an emergency room visit. Now, the Michigan Supreme Court is reviewing an appellate court decision that allowed a neuroradiologist — a much different subspeciality — to be the plaintiff’s expert in the case.

The Litigation Center of the American Medical Association and State Medical Societies and the Michigan State Medical Society (MSMS) have put forward evidence and arguments on the clear differences between these two specialty physician types, explaining that established Michigan legislative and case law requires physician expert witnesses to have the same specialty as the defendant.

Current Michigan law does not focus on the task performed during the alleged medical negligence, but instead, it focuses on the physician and the physician’s specialty. In this case, the standard of care should be evaluated from the perspective of a diagnostic radiologist. 

Without the integrity of expert witnesses, physicians who aren’t of the same subspecialty — and don’t possess accurate knowledge about the standard of care a defendant physician should have met — would have the ability to testify on aspects of care outside of their focus area.

To read more about how this would upend decades of precedent in medical liability cases, click here.

Harm in Criminalizing Medical Mistakes

A recent case involving the criminal prosecution of a nurse for a medical mistake highlights a new precedent for accountability in our nation’s medical liability system.

Sentencing for Tennessee nurse RaDonda Vaught took place earlier in May, following the loss of her nursing license and a prohibition on her working in a health care facility in the future.

However, bringing this medical mistake to a criminal court was out of the ordinary, given that such cases are generally within the purview of state medical boards and civil courts.

Nursing and medical organizations highlighted their opposition to the precedent this set for health care workers, including the likelihood it would worsen the nursing shortage and make nurses less forthcoming about mistakes.

Theresa Collins, a travel nurse from Georgia, highlighted how the ruling would change her on-the-job thinking and actions to be more defensive.

“When you criminalize what health care workers do, it changes the whole ballgame,” Collins said.

Additionally, this precedent could have a ripple effect in the civil court system, giving plaintiff attorneys the ability to use the threat of criminal penalties to reach settlement agreements in cases of adverse outcomes that resulted from no errors.

To read more about the harmful impact of this case on our health care and liability systems, click here.