Vituity

Lawyers' Crusade Against MICRA Threatens California's Medical Safety Net

"It is absolutely critical for the healthcare safety net that MICRA be preserved. It protects our patients and the stability of community health centers to continue to be able to serve the uninsured and economically disadvantaged."

— Jim Mangia, president and CEO, St. John's Well Child and Family Centers (Compton, Calif.)

Each day, thousands of commuters gaze into the eyes of six-week-old Mia Chavez, who died of whooping cough in 2010. "Medical Negligence Kills," reads the Sacramento billboard bearing her picture. "A 38-year-old law says Mia's life was worth only $250,000."

The ad is calculated to pack an emotional punch. Unfortunately, it doesn't tell the whole story.

For one, the lion's share of the $6,635 display was funded not by concerned citizens but by trial lawyers. What's more, their attack on the "38-year-old-law" in question could threaten the health of thousands of California children.

In July, a representative of Consumer Watchdog and Consumer Attorneys of California (CAoC) filed a ballot initiative proposing the overhaul of California's landmark Medical Injury Compensation Reform Act (MICRA). Among other changes, the lawyers propose to quadruple the cap on non-economic damages in medical malpractice suits from $250,000 to $1.1 million.

MICRA was enacted in the California state legislature with bipartisan support in 1975. At the time, skyrocketing malpractice insurance costs were closing facilities and forcing physicians out of practice.

In 1985, the California Supreme Court upheld MICRA's constitutionality. Thus far, state legislators have steadfastly resisted lobbying that would alter or repeal the act.

After being rebuffed on all fronts, trial lawyers' organizations are now seeking to put the issue of tort reform directly to California voters.

CAoC's website calls MICRA "a formidable obstacle in seeking accountability in a court of law for medical negligence." It adds that MICRA removes crucial economic decisions from citizen juries and unjustly enriches insurance companies.

It doesn't mention that de facto elimination of the damage cap would be a bonanza for its members. Trying a medical malpractice case costs upwards of $100,000. Lawyers can't afford to touch one unless the potential payout is enormous.

As a physician, I see the threat to MICRA as one of the sharpest swords hanging over California's healthcare system. We're already experiencing a shortage of physicians. Our community health clinics barely receive enough in reimbursements to care for our existing patients on Medi-Cal (California's Medicaid program).

Still, we're better off than many states. To put things in perspective, Florida law limits non-economic damages to $500,000 (twice as much as MICRA). In 2010, Los Angeles obstetricians paid an average liability premium of $49,804. By contrast, those in Miami paid $200,377.

The de facto elimination of the non-economic damage cap would be devastating to California's medical safety net. Virtually no doctor could afford to care for people enrolled in the Medi-Cal system, which is set to expand by as many as 900,000 enrollees by 2019. Critical services, particularly those in economically marginal urban and rural areas, would be forced to close.

Voters who see Mia's billboard need to consider the unspoken effects of increased medical malpractice litigation. They need to picture parents driving a desperately sick child 50 miles to reach an emergency department, or thousands of children going without life-saving vaccinations.

Contrary to the rhetoric, MICRA doesn't leave victims high and dry. Under current law, Mia's family is entitled to the full cost of her care (including future care when appropriate). If she'd been a victim of egregious negligence, they'd also be entitled to unlimited punitive damages (minus the lawyer's cut, of course).

A $250,000 award for pain and suffering isn't some crass valuation of a loved one's worth. It's simply a reflection of our limited resources and our need to care for millions in an environment where error is ultimately inevitable — even with appropriate precautions in place.

The interests opposing MICRA are organized and well-funded. The California Medical Association, which is committed to fighting the initiative, is now accepting donations through its political action committee, CALPAC.

In addition, please shine a light on the underhanded interests pushing this initiative. Californians Allied for Patient Protection has prepared talking points to guide these conversations.