California's Medical Injury Compensation Reform Act (known as MICRA),
enacted in 1975, caps pain and suffering awards in medical malpractice
cases to $250,000. The cap has never been raised or adjusted for inflation.
To serve as an effective deterrent to medical malpractice by incompetent
doctors, it is time for the cap be be increased.
Most doctors are smart and compassionate people who do not commit malpractice.
According to some statistics, a very small percentage of US doctors are
responsible for the majority of medical malpractice claims. Many of these
doctors are repeat offenders and many malpractice claims can be traced
back to doctors who are addicted to drugs or alcohol. The medical profession
simply is not capable of policing itself and the threat of a lawsuit is
necessary to deter malpractice and to encourage good medical practices.
In fact, malpractice lawsuits against incompetent doctors serve the dual
purpose of policing incompetent doctors and compensating the victims of
their medical negligence. Unfortunately, $250,000 is neither a sufficiently
high enough award to effectively deter medical malpractice nor adequate
to compensate the victims for the death of a loved one, a disabling birth
injury to a child, or a permanent disfigurement caused by an incompetent
doctor. Neither purpose will be served unless and until the punishment
fits the crime.
Opponents of increasing the cap argue that doing so will increase medical
malpractice insurance for doctors and, thus, increase medical costs for
all of us. However, malpractice rates actually increased after MICRA was
originally enacted in 1975 and kept they increasing until the insurance
industry was forced to revise its rate structure with the passage of the
consumer protection law known as Propl 103. Furthermore, the claim of
increased insurance rates is disputed by medical economists who argue
that the most effective way to serve these dual purposes is to raise the
cap to an amount that will both adequately punish incompentent doctors
and adequately compensate his or her victim. Some studies argue that rising
jury awards against incompetent doctors will increase action to prevent
malpractice from occurring in the first place because malpractice insurers
will offer more training to doctors and incompetent doctors may be forced
out of clinical practice. Others argue that increasing the cap pits doctors
against lawyers. In reality, the cap pits all of us against incompetent
doctors, reckless HMO's and other unintended consequences of managed,
for-profit health care system who do not have to pay for the damage they
cause and, untii they do, they have no economic incentive to follow the
"Golden Rule" of medicine: Do no harm.
Lawyers like me have been lobbying for an increase in the cap to $1.1 million
and the CA legislature currently is considering a bill to do so. It is
called the Troy and Alana Pack Patient Safety Act of 2014 in honor of
2 Bay area children who were killed by a prescription drug abusing doctor.
In addition to increasing the MICRA cap, the proposed law also includes
commonsense consumer protections such as mandatory drug and alcohol testing
for doctors (just like we already do for airline pilots, truck drivers
and others entrusted with the job of keeping us safe) and establishing
a statewide data base to crack down on doctors' who abuse prescription
drugs by prescribing them for themselves. This proposed law is a grass
roots effort to make patients safer and I hope you will support it.