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.
Attorney, certified civil mediator, and award-winning author of the Zachary Blake Betrayal Series. Mark Bello is also a member of the State Bar of Michigan, a sustaining member of the Michigan Association for Justice, and a member of the American Association for Justice.