If you go to the hospital or see a doctor in California and you end up badly injured because the doctor was incompetent or the hospital was unsafe, you should be able to do something about it. You should be able to take the health care provider to court and be fully compensated. But in California, you can’t. That’s because 35-years ago, California enacted one of the harshest laws in the nation limiting the legal rights of everyday Californians. This law is called “MICRA.”
MICRA harms patients, has done nothing to help doctors with their insurance problems, and makes it very difficult to hold negligent doctors and hospitals responsible, leading to a dangerous patient safety environment in California.
MICRA - California's Cap on Non-Economic Damages:
MICRA, or the Medical Injury Compensation Reform Act (MICRA) severely limits, or “caps” compensation for certain important kinds of injuries like blindness, mutilation, severe pain, trauma or damage to woman’s reproductive system. These are known as “non-economic” injuries. This cap of $250,000 was passed in 1975. In today’s dollars, that’s about $65,000. This cap has never once even been adjusted for inflation.
MICRA is a “one-size-fits-all” law that puts the same cap on all medical malpractice cases, no matter how bad they are, how reckless the hospital care was, how severe the injury was - and even if your child dies. In other words, in 1975 politician decided to value a child’s life at $250,000. That law remains today. According to the law, the death of a child is equal to amputation of the wrong limb or any other kind of negligence causing “non-economic” harm.
Because the cap applies to “non-economic” damages, it also discriminates specifically against children, seniors, women who don't work outside the home, low-wage workers, and the unemployed. (See more about the discriminatory impact of this cap here.) For example, University of Buffalo Professor Lucinda Finley has written, “[J]uries consistently award women more in noneconomic loss damages than men … [A]ny cap on noneconomic loss damages will deprive women of a much greater proportion and amount of a jury award than men. Noneconomic loss damage caps therefore amount to a form of discrimination against women and contribute to unequal access to justice or fair compensation for women.”
Because medical malpractice cases are so expensive to bring and the cap is so low, it’s often impossible for an injured patient to even bring a case in California. As insurance defense attorney, Robert Baker, who defended malpractice suits for more than 20 year, explained to Congress, “As a result of the caps on damages, most of the exceedingly competent plaintiff's lawyers in California simply will not handle a malpractice case... There are entire categories of cases that have been eliminated since malpractice reform was implemented in California.”
When a patient – including parents of a catastrophically injured child –cannot bring their case, they often must turn to government health and disability programs like Medicaid for their care. So rather than the negligent health care provider paying for what they did, the taxpayer ends up footing the bill.
Insurance Industry Makes Out Like Bandits:
While coming at a high cost to victims of medical malpractice and taxpayers, MICRA’s cap has been a bonanza for the insurance industry. In fact, California’s medical malpractice insurance industry has become so bloated due to this cap, that “as little as 2 or 3 percent of premiums are used to pay claims” and “the state’s biggest medical malpractice insurer, Napa-based The Doctors Company, spent only 10 percent of the $179 million collected in premiums on claims in 2009.” This led Insurance Commissioner Dave Jones to say that, “insurers should reduce rates paid by doctors, surgeons, clinics and health providers while his staff scrutinizes the numbers.”
Meanwhile, doctors’ insurance rates have not benefited either. Despite the number of medical malpractice cases dropping after the cap was enacted in 1975, doctors’ premiums skyrocketed 450% over the next twelve years. This was higher than the national average.
In 1988 California voters passed Proposition 103, a stringent insurance regulatory law, that finally brought rates down and gave the Insurance Commissioner more authority to prevent excessive rate hikes. During the period when every other state was experiencing skyrocketing medical malpractice rate hikes in the mid-2000s, California’s regulatory law led to public hearings on rate requests by medical malpractice insurers in California, which resulted in rate hikes being lowered three times in two years, saving doctors $66 million. On the other hand, the caps did nothing to help doctors. (See more here).
Dangerous Patient Safety Environment:
By making it harder for California victims of medical malpractice to access the civil justice system and hold accountable reckless health care providers, a dangerous patient safety environment in California exists. In 2011, the California Department of Public Health issued administrative penalties to 12 different California hospitals for violations and errors that caused or were likely to cause serious injury or death to patients. These serious errors included leaving foreign objects in patient's bodies during surgery and administering the wrong medication. As the LA Times reports, "since 2007 the department has issued 198 penalties to 124 hospitals and had collected $4.6 million in fines."
Additionally, in its National Report Card on the State of Emergency Medicine, the American College of Emergency Physicians gave California a "D plus" overall and graded their Qualify/Patient Safety a "D minus," stating reasons such as overcrowding and boarding of patients in emergency departments.
California is Out of Step with the Rest of the Country:
California has not raised this $250,000 "non-economic" damages cap since it was written into law in 1975. Unlike states like North Carolina or Oklahoma, California has never allowed this cap to be adjusted for inflation. In fact, according to the American College of Emergency Physicians, California is only one of only four states in the country that have a hard $250,000 "non-economic" damage cap in medical malpractice cases. It would take $1 million in today's dollars to equal what this cap was valued in 1975.
If you would like to do something, please go here to find out how to contact your state representatives!