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The battle lines are being drawn in California over the issue of caps on Medical Malpractice recoveries. The Consumer Attorneys of California may be teaming up with Robert Peck, the Washington D.C. attorney who has been successful fighting caps on constitutional grounds in various states, to challenge MICRA (Medical Injury Compensation Reform Act of 1975). KCRA 3 in California reports that a recent challenge was denied in the state court of appeals, but may be on its way to the California Supreme Court.

Attorneys are well aware of these laws that restrict an injured or disabled person’s access to justice. I am not certain the public is aware of the outrageous results made possible by these justice-restricting laws. That is why I have been actively blogging about these issues at this location and many others. Without these restrictive laws, if you or your loved is maimed or killed by a medical mistake, there are no limits to how much money you can recover; you submit your case and damages to a jury and the jury decides how much your loss is worth. Components of recovery are usually medical expenses and other out of pocket expenses (in death cases, for instance, these would include burial expenses), lost wages, and the intangible, "pain and suffering". It is pain and suffering awards (and damages that punish outrageous conduct, called "punitive damages") that the pro-insurance company caps are designed to limit. Pain and suffering and/or punitive damage awards can be millions of dollars. In California and other states with these caps, the pain and suffering recovery is limited to $250,000, a cap that was established over 30 years ago.

It doesn’t matter to the pro-insurance groups (some of your own legislators are part of this group-remember that next time you step into the voting booth) that, sometimes, the circumstances of a catastrophic injury or death require an award of millions for the injured person’s sustenance. The pro-insurance, anti-consumer guys just don’t want to pay it. They would rather the insurance companies hold onto it as "profit" and we all know that insurance companies make billions in "profits". They would rather you pay for it in public assistance. That’s correct, PUBLIC ASSISTANCE; without being appropriately compensated by the insurance company and the medical facility that took on the risk and received compensation for it, who do you think is going to support the injured, disabled and survivors of those killed?

The KCRA piece features the case of Stanley Stinnett who died as the result of a "series of medical mistakes" in a California hospital. After his widow settled with the hospital, the case went to trial against the doctor and the jury found in her favor, to the tune of $1.4 million in medical expenses and wages, and $6 million for pain and suffering. Under current law, she’ll never see the $6 million; her recovery is capped at $250,000, $5.75 million less than the jury awarded.

There is certainly an argument to be made that restrictive laws like MICRA result in lower insurance premiums for doctors. The argument suggests that health care is, thus, more affordable. The fear is that "good doctors" would leave the state. But, punishing bad doctors with higher rates and rewarding good ones with lower rates would accomplish the same thing, as would a concerted effort by the medical community to improve transparency and reporting and to limit careless medical mistakes. Why punish the victim/patient? As Chris Dolan, an attorney/member of the Consumer Attorneys of California says:

"It (capping pain and suffering at $250,000) was just a terrible thing to do to people who’ve been harmed and a great thing to do to the insurance companies’ bottom line,"

This is a question of conscience; it is a question of justice; it is a question of fairness. The caps argument reminds me of the Ronald Reagan "trickle down economics" theory that George Bush senior once called "voodoo economics". The suggestion that, somehow, the insurance company profits made on the backs of the injured, maimed, disabled and deceased will "trickle down" into the pockets of consumers and doctors is ludicrous. It is also grossly unfair to the one of the weakest segments of our society. The threat of a large medical malpractice award is a strong deterrant against bad doctors and keeps us safer. If there are limited or no consequences for bad behavior, bad behavior will continue. It is really that simple.

Lawsuit Financial provides medical malpractice lawsuit funding. It is one of a very select group of legal finance companies that has the expertise to underwrite and fund medical malpractice cases. Cap or no cap, we fund cases against their prospective case value; thus, arguing for the abolishment of caps does not have any significant, direct, benefit to our company. However, Lawsuit Financial is a pro-justice, pro-consumer company. As such, we will continue to stand up for justice, in as many forums as possible. Please, show your strong support for the abolishment of caps or limits on recoveries in medical malpractice cases and/or other personal injury cases. Contact your elected officials, find out where they stand on these issues, and let them know that you will not vote for someone who supports these types of injustices.

29 Comments

  1. Gravatar for Mike Bryant

    You are nailing home, the point all the frivolous talk of tort reform is truly to limit and to eliminate their liability for problems they cause.

  2. Gravatar for Jim O'Hare VP med mal claims
    Jim O'Hare VP med mal claims

    Why not just do away with policy limits of the physician's policy? Leave it open to compensate without end. Would that work for you?

    Money is objective and pain is subjective, therefore not subject to measurment via length, mass or depth. The cap is the only thing close to a ruler. We can argue the limit, 250k or 500k. That does not matter.

    Tell me right now what 4 minutes of 7/10 pain, to an extremity, suffered by a 65 yo Navy Seal that is in a coma? You are weighing smoke. If my $250k house gets blown down, I can measure the damage via the policy and the value of the house- Objectivly.

    Is the real goal to make your client whole or to reach for the lotto number at the expense of the doctor, hospital or insurance company? I measure every other element of damages, Why is P&S immune?

    Until the plaintiffs bar comes up with a reasonable ruler, caps are all we have for pain and suffering.'

    regards Jim OHare VP med mal claims

  3. Jim: In some respects, you are correct. Policy limits act as a "reasonable cap", in some instances, to malpractice claim. However, the doctor usually is someone of considerable means, so he has a choice as to how much coverage is necessary to protect his own pocketbook. If he chooses $250,000, he will, most likely, have additional exposure. That's a lot different than the insurance industry charging doctors enormous rates and have their own pocketbooks protected for any amount over $250,000 by government intervention. Caps on liability awards for the most profitable companies in America was the first corporate "bailout", and no one (except those of us in the litigation business) knew about it. All of the bank and auto company "bailout" criticism is almost laughable with liability caps having been around for 30 + years. The bottom line is that if the "bad doctor" isn't responsible for an amount that adequately compensates for a catastrophic injury, the taxpayers pick up the slack and the insurance company is laughing at all of us. The "bad doctor" suffers not at all, learns no lesson, and continues to practice bad medicine. Despite your pro-insurance company slant, surely you can see that, if the doctor was negligent, and if the intangible damage is worth more than $250,000 (no, I am not capable of providing you a reasonable measurement, that's what trials, juries, and judges are for) it is not for the legislature to decide, arbitrarily, at a number picked out of a hat almost 35 years ago, what pain and suffering is worth. It is the suject of proof, in front of the trier of fact. Every case is different; every injury is different; every personal situation and impact on that personal situation is different. That is why caps, in my humble opinion, are unconsitutional; they fail to properly treat and weigh individual situations with fundamental fairness to each individual. They fail to properly quantify the harm caused.

  4. Gravatar for jim O'Hare

    Dear Mark- Thanks for your reply. I believe that you have decided that the appropriate ruler for pain and suffering is: the emotions of a jury. What ruler do they use? anything objective? Let us argue the size of the cap ,but you cant have infinity as a possibility. Explaining pain to a jury is real sexy for the plaintiffs bar, not so much for the defense. I am all for paying claims and making the client whole. What if all doctors went bare and placed all their assets in their spouses name? Do you take cases where there is no insurance? My guess is no. If I let you pick the number of a cap, what would it be.

    You say pain is subject to proof- how much per pound or yard or ton. You conclude your last statement that they( the legislature) fail to properly quantify the harm caused. That is the point- you cant quantify pain and sufffering and until we get a ruler/scale- there must be a cap. You pick regards Jim

  5. Jim: Obviously, we will not agree on this; we come from opposite experiences and have deeply held convictions about the issues. I simply suggest that juries decide cases on the facts and the law, as instructed by the judge. Whether or not emotion enters the equation is beside the point. The judicial system is one the our constitutional framers guaranteed us; it is not for the legislature to decide the extent of damages; it is for the jury or judge to decide. A 35 year old cap figure, arbitrarily decided upon by an ancient legislature, may provide justice in some cases, but not all. All cases and all plaintiffs were not created equal and that is the problem. "Infinity" is not the cap; "reasonableness" is. If a jury decides unreasonably high due to "emotion", a reasonable judge has power to reduce the award. That is an appropriate check and balance. What is the value of your child's life when something goes wrong on the operating table? $250,000? You know better. Regards, Mark

  6. Gravatar for IKE DEVJI, J.D.

    As an attorney that protects doctors from the bottomless appetite of the litigation system I will have to agree with Jim as to the yardstick used today, which is based on collectibility as much or more than fault, negligence and pain and suffering.

    The idea that liability insurance limits cap collection is ABSURD – if the defendant is collectible and has assets the contingency fee plaintiff attorney would be making a poor business decision is settling for some offer against the $1MM policy. I warn our clients that merely being “good” or right is not enough. The average malpractice award nationally is $3.9MM plus, and this socially, politically and economically hostile climate is all too eager to take money from the “evil rich doctor” and give it to the poor patient. This is where the flawed "human" element of the law eneters the picture and where emotion does infact play a very real role in the verdicts we see handed down every day.

    What I'm seeing among the thousands of doctors we protect is the following:

    - Increased barriers to rightful compensation;

    - Increased litigation against doctors of ALL types as people look to the "lawsuit lottery" for alternative income;

    - Increasing malpractice premiums and decreasing lawsuit protection from the policy itself due to “consent to settle” and “defense inside the limits” clauses used by teh carrier to limit their own liability.

    Do people who have been harmed deserve to be compensated - of course. Are caps the right way to limit that recovery - maybe. Are lawsuits misused as an income source by MANY in the system - EVERY DAY.

    Ike Devji, J.D.

  7. Ike: As with Jim, I agree with some of what you say. I don't doubt that there are instances where juries reward plaintiffs because the doctor is "rich" and the plaintiff is "poor". And, I argued that a "rich" doctor should choose that amount of insurance that appropriately protects his personal assets; I didn't say or even intimate that policy limits "cap" recovery against a doctor. What both you and Jim fail to discuss, though, is PHYSICAL CONDUCT and INNAPPROPRIATE MEDICAL RESULTS that lead to any $3.9 million verdict. These types of sums are not paid for no reason; my experience is that attorneys who do not have the goods against a doctor will get no-caused at trial. I invite IB members to share their experiences in that regard. Your $3.9 mil statistic is misleading because it does not include an offset for "$0" awards. Are there excessive verdicts? Sure, there are. But as I said to Jim; if they shock the conscience, they can be reduced by the trial judge on a motion. I am simply saying that a $250,000 cap in ALL situations is an unjust remedy for most. Are caps being used to mistreat, misdiagnose and otherwise fail patients without adequate recourse in the legal system? EVERY DAY! Are insurance companies profiting, enormously from caps? EVERY DAY! There has to be a better way than violating a patient's constitutional right to a trial by a jury of his/her peers. Thanks for writing. Regards, Mark

  8. Gravatar for James Cool

    How is legislators weighing the value of P&S different than juries? Please explain why one is preferable to the other.

  9. Gravatar for Jim O'Hare

    This is a good discussion and wait til my wife hears that sombody agrees with me- Thanks Ike. I try to step back from all issues that I am too close to- like med mal. Difficult but try looking into the other end of the tunnel.

    A few things:

    -The cap varies by states; it is not $250k everywhere, but it is the lowest that I have seen.

    - If a jury returned a verdict for a billion dollars, would this shock your conscience and move the court to reduce it? What shocks the conscience when ARod makes $25 mil/yr

    - RE a jury of peers!! you must be kidding. The jury of peers is for the benefit of the defendant, not the plaintiff. That standard is never met. If the Dr was caught shoplifting maybe Joe the plumber is good for a juror. For understanding retrograde cholangio- pancretatograms- not so much.

    - Blacks defines peer as equal rank and station. I'd settle for a podiatrist, engineer and attorneys for peers. In 25 yrs I have never seen a Dr with a jury of peers. Never

    - In my experience, I try to always take winners to trial, and nationwide 80% of the wins go to the doctor.

    - THe idea is to make your clients whole and the value of any case is what you say yes to or the policy limit, no matter the injury. Not you personally- over the past 25 yrs.

    - I am the VP of claims for PIC, the 2nd oldest PL insurer in Florida- In biz since 2003. 2 Dozen companies have come and gone since. a tough biz.

    - What would really help is a change in forum to arbitration. Peers decide the med mal, The hollywood cinema amping up verdicts is flushed, the courts get declogged, more $ goes to the injured,premiums come down, defensive medicine is reduced and the Cubs win the world series.

    - Not palatable? why?- It removes the chance at a lotto number.

    - What would your auto insurance cost if P&S could be compensated open ended.

    By the way the cost of any case from soup to nuts results in the injured patient getting maybe 42% of the outlay. Shouldnt that # be alot higher? How about a million dollar cap?

    regards Jim

  10. Jim: Again, a lot of what you say is true. That you choose the trials and 80% of the wins go to the doctors is the point I was making to Ike. His $3.9 Mil number does not factor the no causes. I don't prefer "offensive" medicine to "defensive" medicine; I prefer that doctors adhere to the appropriate standard of care and be liable for the damage they cause when they don't. I don't want the legislature to decide what an individual's pain and suffering is worth. The "lotto number" (as you call it) risk, will, hopefully, keep doctors more careful. Hitting the lotto when you're healthy is a lot better than winning a similar sum as a quadriplegic from a botched neck surgery. Loss of life or spending the rest of your life with a condition like that is, simply, worth more than the numbers you are suggesting as 'fair'. The numbers would need to be that which sustains a reasonable standard of existence considering your condition. That's why caps (especially $250,000) are so unfair; they don't take into consideration individual situations and the possibility that more dollars will be required to maintain a reaonsable existence in the catastrophic case.

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