“Can Medical Justice solve my problem?” Click here to review recent consultations…
all. Here’s a sample of typical recent consultation discussions…- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
- Just received board complaint…
- Allegations of sexual harassment by employee…
- Patient filed police complaint doctor inappropriately touched her…
- DEA showed up to my office…
- Patient “extorting” me. “Pay me or I’ll slam you online.”
- My carrier wants me to settle. My case is fully defensible…
- My patient is demanding an unwarranted refund…
- How do I safely terminate doctor-patient relationship?
- How to avoid reporting to Data Bank…
- I want my day in court. But don’t want to risk my nest egg…
- Hospital wants to fire me…
- Sham peer review inappropriately limiting privileges…
- Can I safely use stem cells in my practice?
- Patient’s results are not what was expected…
- Just received request for medical records from an attorney…
- Just received notice of intent to sue…
- Just received summons for meritless case…
- Safely responding to negative online reviews…
California has one of the longest track records in the US on substantive tort reform. For decades, California had a cap on pain and suffering. That cap was $250k and dated back to 1975. Before many of our readers were even born.
What does that mean?
Payouts for professional liability are often divided into economic damages and non-economic damages.
Economic damages are line items that can be measured – such as lost income, medical expenses, the future cost of care, and so on. If a patient cannot work because they were injured by medical negligence and that person was making $100k a year, there’s a formula to determine, over time, the “lost wages.” If a patient injured by negligence needs to have a life care plan for activities of daily living and rehabilitation, there are calculations to determine, over time, how much that will cost.
Non-economic damages are softer numbers. Frequently it means payment for “pain and suffering.” Pain and suffering are in the brain of the beholder. If the sky is the limit, lawyers will argue that payment for pain and suffering should touch the clouds.
In most states that have implemented some version of tort reform, a cap is placed on non-economic damages. In those states, there is no cap on economic damages. If medical negligence causes a young patient to become a quadriplegic, those economic damages will be a throat-clearing number. But the number for pain and suffering (in a tort reform state) will be modest.
In California, since 1975, that number for pain and suffering has been stuck at $250k.
For doctors practicing in California, that cap has kept professional liability premiums level and reasonable.
Over the decades, plaintiff’s lawyers tried, unsuccessfully, to get this cap raised. They argued that this number has not kept pace with inflation. It is among the lowest in the nation. Also, California is among the most expensive states in the nation for living expenses. All good arguments. All failed.
Physicians argued that raising this number would cause med mal premiums to spike, making it more expensive to deliver care. It would also cause a physician exodus.
This year, trial attorneys with patients’ rights groups and physicians drew another line in the sand.
With neither side budging, California voters were set to settle the issue in November. A ballot measure would ask voters to tie the limit to inflation, immediately increasing it to about $1.2 million. The two sides had collectively raised about $35 million in what was expected to be one of the most fiercely contested ballot measure campaigns this year.
Before the battle began, the two sides came to an accommodation. There will not be a referendum.
[S]upporters of raising the limit agreed to withdraw the measure from the November ballot. Instead, they supported a new bill in the state Legislature that would gradually increase the limit over the next 10 years. The bill has the support of the California Medical Association, the Consumer Attorneys of California, Californians Allied for Patient Protection, state legislative leaders and Democratic Gov. Gavin Newsom, who said he would sign it into law.
Here are the mechanics of the bill.
Next year, the cap for non-economic damages for those who are negligently injured would rise from $250k to $350k. It would rise to $500k for those who die (from negligence). These caps would rise every year until they reach $750k for injured patients and $1M for families of deceased patients. Thereafter it would rise 2% each year to “keep up with the cost of inflation.”
But wait. There’s more. The potential to double-dip.
The new limits would apply to medical providers and institutions. So, if both doctor and hospital are sued, there’s a potential maximum $350k for pain and suffering from suing the doctor. Another $350k from suing the hospital in parallel.
But wait. There’s even more.
Patients can win damages from a third provider or institution if they are unaffiliated with the first two. It’s not clear what unaffiliated means. But expect to see shotgun suits where every provider in the chart is named.
The new limits would only apply to cases filed after January 1, 2023.
What will happen to professional liability premiums?
The California Medical Association is sanguine about near-term hikes.
Gradually raising the limit over 10 years makes sure medical malpractice insurance premiums don’t rise too quickly for doctors, said Dustin Corcoran, CEO of the California Medical Association.
Whether premiums spike or stay stable is a math question soon to be solved by actuaries.
We’ll see.
As I opened, there have never been caps for economic damages in California. The caps for pain and suffering that were locked in place since 1975 are set to increase.
What do you think?
Medical Justice provides consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a consultation – or use the tool shared below.“Can Medical Justice solve my problem?” Click here to review recent consultations…
all. Here’s a sample of typical recent consultation discussions…- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
- Just received board complaint…
- Allegations of sexual harassment by employee…
- Patient filed police complaint doctor inappropriately touched her…
- DEA showed up to my office…
- Patient “extorting” me. “Pay me or I’ll slam you online.”
- My carrier wants me to settle. My case is fully defensible…
- My patient is demanding an unwarranted refund…
- How do I safely terminate doctor-patient relationship?
- How to avoid reporting to Data Bank…
- I want my day in court. But don’t want to risk my nest egg…
- Hospital wants to fire me…
- Sham peer review inappropriately limiting privileges…
- Can I safely use stem cells in my practice?
- Patient’s results are not what was expected…
- Just received request for medical records from an attorney…
- Just received notice of intent to sue…
- Just received summons for meritless case…
- Safely responding to negative online reviews…
Dear Jeff,
The CMS caved in because UTIs populated with woke MDs
It should be on the ballot and reflect the same and relatively recent Tennesseeeand Texas Micra laws that were on their ballots. Also they had SLAPP laws also implemented.
We should have here too. The CA is a one party government greased with lawyers. The doctors are the frogs in the water that is going to be gradually heated until it is too hot and the frogs die. We have to get out now to the public on the ballot, and remind them what happened to inspire MICRA. Hospitals were shut down due to doctors not being able to pay the Malpractice insurance fee.
I am glad that at least you see the danger and may encourage the doctors to stand up and fight!
Having watched these shenanigans for 40 years, to enrich attorneys, I’d propose something new.
If attorneys are so interested in injured patients, then they must be willing to cap their fees at 10% of any settlement. If you stop the windfall that the attorneys are extracting 1/3 of the settlement for their fees and 1/3 of the settlement for expenses, and cap the attorneys fees at 10% and they have to pay the expenses out of their fee (like we have to pay office overhead from our professional fees) this nonsense will be curtailed. Physicians need to lobby for that change. Patients should like it. Why not cap fees? Then the patients would get more of the settlement, and if they are the injured party they deserve it. Put that on a ballot referendum. Of course the end result would be the end of a lot of frivolous law suits. Many suits are brought because it is the malpractice lottery. Also, banning naming multiple defendants to malpractice cases must be stopped. Pick the primary defendant and that is it. Casting a wide net, to name every doctor whose name is in the chart should be prevented. We as physicians have our malpractice carriers paying for defense attorneys at every deposition, running up typically $40k or more just because we were peripherally involved in the care of a patient.
Increasing the caps for pain and suffering is a very bad idea, simply because it will not releives… pain and suffering…
Jeff, as a neurosurgeon, you will like this…
We operate on people quite frequently for pain. Agonizing pain that hurts enough for someone to go against his own intuition and the advice of all his relatives and friends, and have spinal surgery. Let’s say it’s a bad foraminal herniated disc. That’s a lot of pain and suffering. Perhaps $750,000 worth (the CA value in 10 years). So…if you want relief from that pain and suffering, dear plaintiff/patient, pay me $750,000. Cash. Up front.
Or, sign a preop waiver against such frivolity, and then I’d be happy to take the insurance contracted $800 for the case. Your choice. Pain and suffering indeed.
CA is likely having the largest exit in the Union due to the exorbitant cost of living. Now the rich libertard residents of CA will finally get the health CD are they have been begging for.
Jeff,
Now that more and more doctors are employed by hospitals, and it is the hospital that is paying the malpractice premium, I would expect that the hospital industry is fighting this tooth and nail. Am I right? Doesn’t this pit two very strong lobbying groups against each other, hospitals and lawyers?
A single plaintiff attorney from out of state contributed $40 million dollars to the campaign to overturn MICRA. Stop and think about that. If he felt that was a worthwhile investment on behalf of his California-based colleagues, one should shudder imagining the sheer value of MICRA repeal for the lawyers. Indeed the ultimate effect of this is transferring hard-earned money from doctors to the plaintiff attorneys. With our insurance reimbursement rates fixed or declining, why pray tell shouldn’t the MICRA limits be fixed or declining? It is anathema that the doctors will be expected to pay this difference on declining revenues, yet the lawyers get to charge the same commission they have always charged, and now on even greater payouts.They are shameless and the lawmakers are too clueless to recognize it.