A Response to UT Editorial re: CA Medical Malpractice Law

By Aline Miranda on April 1, 2014

California’s Medical Injury Compensation Reform Act (known as MICRA), enacted in 1975, caps pain and suffering awards in medical malpractice cases to $250,000. The cap has never been raised or adjusted for inflation. To serve as an effective deterrent to medical malpractice by incompetent doctors, it is time for the cap be increased.

Most doctors are smart and compassionate people who do not commit malpractice. According to some statistics, a very small percentage of US doctors are responsible for the majority of medical malpractice claims. Many of these doctors are repeat offenders and many malpractice claims can be traced back to doctors who are addicted to drugs or alcohol. The medical profession simply is not capable of policing itself and the threat of a lawsuit is necessary to deter malpractice and to encourage good medical practices. In fact, malpractice lawsuits against incompetent doctors serve the dual purpose of policing incompetent doctors and compensating the victims of their medical negligence. Unfortunately, $250,000 is neither a sufficiently high enough award to effectively deter medical malpractice nor adequate to compensate the victims for the death of a loved one, a disabling birth injury to a child, or a permanent disfigurement caused by an incompetent doctor. Neither purpose will be served unless and until the punishment fits the crime.

Opponents of increasing the cap argue that doing so will increase medical malpractice insurance for doctors and, thus, increase medical costs for all of us. However, malpractice rates actually increased after MICRA was originally enacted in 1975 and kept they increasing until the insurance industry was forced to revise its rate structure with the passage of the consumer protection law known as Prop 103. Furthermore, the claim of increased insurance rates is disputed by medical economists who argue that the most effective way to serve these dual purposes is to raise the cap to an amount that will both adequately punish incompetent doctors and adequately compensate his or her victim. Some studies argue that rising jury awards against incompetent doctors will increase action to prevent malpractice from occurring in the first place because malpractice insurers will offer more training to doctors and incompetent doctors may be forced out of clinical practice. Others argue that increasing the cap pits doctors against lawyers. In reality, the cap pits all of us against incompetent doctors, reckless HMO’s and other unintended consequences of managed, for-profit health care system who do not have to pay for the damage they cause and, until they do, they have no economic incentive to follow the “Golden Rule” of medicine: Do no harm.

Lawyers like me have been lobbying for an increase in the cap to $1.1 million and the CA legislature currently is considering a bill to do so. It is called the Troy and Alana Pack Patient Safety Act of 2014 in honor of 2 Bay area children who were killed by a prescription drug abusing doctor. In addition to increasing the MICRA cap, the proposed law also includes commonsense consumer protections such as mandatory drug and alcohol testing for doctors (just like we already do for airline pilots, truck drivers and others entrusted with the job of keeping us safe) and establishing a statewide database to crack down on doctors’ who abuse prescription drugs by prescribing them for themselves. This proposed law is a grassroots effort to make patients safer and I hope you will support it.