Initiative to lift California medical malpractice cap filed

Published Friday, Jul. 26, 2013 - The Sacramento Bee

The drive to raise the amount victims can recover in medical malpractice lawsuits may be going to California's ballot box.

A coalition that includes the Consumer Attorneys of California, an organization representing trial lawyers, has been lobbying the Legislature aggressively this year to lift a $250,000 ceiling on pain and suffering damages in malpractice cases.

They argue that the current cap, enacted by the 1975 Medical Injury Compensation Reform Act, is outdated and insufficient to cover the prolonged effects of doctor negligence or a botched medical procedure. By suppressing the potential payout, they say, the law discourages attorneys from taking on malpractice cases.

With a few weeks left in the legislative session, lawmakers have yet to take on the issue. One member of the coalition, Santa Monica-based Consumer Watchdog, on Thursday said it had filed papers to take the matter directly to voters.

It is overseeing a proposed ballot measure filed by proponent Robert S. Pack, whose two children were killed by a driver impaired by prescription drugs given to him by irresponsible doctors, according to Consumer Watchdog President Jamie Court.

"He sued Kaiser and found out that his kids' lives were worth $250,000 each, simply because he was suing a doctor," Court said.

The initiative would likely spur a costly campaign for the 2014 ballot - with doctors, lawyers, hospitals and insurance companies all having a stake in the outcome.

If passed, the measure would raise the ceiling on pain and suffering damages payments to about $1.1 million and allow it to continue rising along with inflation (current law allows unlimited compensation for lost wages and medical costs).

The proposed measure also would mandate random drug and alcohol testing for physicians who practice in hospitals and surgery centers and compel physicians to use a database that tracks prescriptions.

Consumer Attorneys of California has not yet decided to formally endorse the ballot initiative, spokesman J.G. Preston said.

"We're still doing everything we can to see if we can reach a legislative settlement," Preston said, adding that "updating and modernizing this cap to bring it in line with the reality 30 years later is a very high priority for us."

Senate President Pro Tem Darrell Steinberg has called for the clashing interests to hammer out a cease-fire in the long-running conflict.

"This same cap has been in place for decades," Steinberg told reporters recently, "and I think what the recent activity is showing is that this issue is not going to go away."

The ballot measure is likely to encounter fierce opposition from the medical community. It immediately drew criticism from the California Medical Association, the California Hospital Association and the Civil Justice Association of California, a business and insurance-industry backed group focused on curbing litigation.

They lambasted the initiative's backers for potentially driving up liability costs and, as a result, swelling the price of care. The timing is especially bad, they say, because California will face a doctor shortage as the federal health care overhaul brings an influx of newly insured patients.

"The trial lawyer-sponsored changes to MICRA are going to make it easier for them to file meritless lawsuits to augment their fees, which will raise health care costs without doing anything to increase quality," said Paul Phinney, president of the California Medical Association.

Phinney added that the provisions addressing prescription drug abuse and physician testing are essentially a fig leaf, designed to distract voters from the measure's central thrust.

"The main intent of this initiative doesn't have anything to do with (the prescription drug database) or drug-testing doctors," Phinney said. "It has to do with the cap on economic damages because it will be a windfall for lawyers."

Call Jeremy B. White, Bee Capitol Bureau, (916) 326-5543.