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Saturday, December 29, 2007

Law - "Attorneys often avoid medical malpractice suits because California limits 'pain and suffering' awards to $250,000"

The caption under the photo or a doctor in surgical gear on today's LA Times front-page reads:

Once an advocate of the California medical malpractice law, Dave Stewart, an anesthesiologist, now opposes it. His 72-year-old mother died after a double knee-replacement surgery last April, he and his sisters decided to sue. But no one would take the case, saying it wasn't worth the money.
From the lengthy story, reported by Daniel Costello:
Stewart and his two sisters decided to sue, and they approached two dozen lawyers. One after another declined to take the case, always for the same reason: It wasn't worth the money.

In 1975, California enacted legislation capping malpractice payments after an outcry from doctors and insurers that oversized awards and skyrocketing insurance rates were driving physicians out of the state.

The law limited the amount of money for "pain and suffering" -- usually the physical and emotional stress caused from an injury -- to $250,000. There is no limit on what patients can collect for loss of future wages or other expenses.

Over the years, it has been easy to quantify the effects of the law, known as the Medical Injury Compensation Reform Act, or MICRA. In the years since the law was enacted, malpractice premiums in California have risen by just a third of the national average, and doctors say the law now helps attract physicians to the state. Proponents also say it discourages frivolous lawsuits.

Thirty states have enacted similar legislation. Two Republican presidential candidates -- Mitt Romney and Rudolph W. Giuliani -- have recently endorsed the approach as a possible national model.

It's been harder to tally the law's costs. Critics say it is increasingly preventing victims and their families from getting their day in court, especially low-income workers, children and the elderly. Their reasoning: The cap on pain and suffering has never been raised nor tied to inflation.

Meanwhile, the costs of putting on trials are often paid by attorneys and continue to rise each year. That means those who rely mainly on pain and suffering awards -- typically people who didn't make much money at the time of their injury -- are increasingly unattractive to lawyers.

Several states have set their malpractice caps considerably higher than California's because of worries that they affected poorer patients the most. Some state courts have begun to examine the fairness of their malpractice laws, especially those not tied to inflation. California lawmakers have rarely reconsidered the state's malpractice legislation.

Yet a Times analysis of state court records, physician payment data and insurer financial records suggests that the cap is increasingly preventing families such as the Stewarts from getting their day in court. * * *

Some state courts have struck down malpractice caps that didn't rise over time. Last month, an Illinois circuit court judge ruled unconstitutional a 2005 state law that caps noneconomic damages in medical liability cases. The case is on appeal.

In 2006, a Louisiana appeals court ruled that its state malpractice cap, established in 1975, did not adequately compensate patients and needed to be raised to $1.6 million. The ruling was overturned this year by the state's Supreme Court.

Some families who succeed at trial in California are often surprised at how little money they see in the end.

Posted by Marcia Oddi on December 29, 2007 11:26 AM
Posted to General Law Related