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Californians May See a Big Change in Medical Malpractice Law Which Would Increase Pain and Suffering Compensation for Victims of Malpractice

The Medical Injury Compensation Reform Act (MICRA) of 1975 may be revised. This law capped the recovery victims could receive in medical malpractice lawsuits.

MICRA was intended to lower medical malpractice liability insurance premiums for healthcare providers in that state by decreasing their potential tort liability.

Non-economic damages are limited to $250,000. Non-economic damages include claims for pain and suffering, loss of consortium, both of which permit the financial recovery for losing limbs, losing sight or hearing, the ability to walk, and all other losses that do not directly relate to economic losses.

Only two other states, Kansas and Montana, have a cap on non-economic damages in medical malpractice cases as low as California’s. In 21 states and the District of Columbia there is no cap on medical malpractice damage awards.

Attorney fees that are taken from the amount of the settlement are limited under MICRA and the defendant healthcare providers can pay the settlement over time.

The bill will amend MICRA as follows:

For a non-death case, the cap increases from $250,000 to $350,000 on January 1, 2023, and continues to increase to $750,000 over ten years.

For a wrongful death case, the cap increases from $250,000 to $500,000 on January 1, 2023, and continues to increase to $1,000,000 over ten years.

After the caps increase to $750,000/$1,000,000 in 2033, a 2% COLA attaches starting January 1, 2034, thereby adjusting the caps annually.

Current law limits a plaintiff’s recovery to $250,000, regardless of the number of defendants. This proposal creates three separate categories of defendants for a total of three possible caps:

One cap for health care providers (regardless of the number of providers or causes of action).

One cap for health care institutions (regardless of the number of institutions or causes of action).

One cap for an unaffiliated health care provider or health care institution that commits a separate negligent act.

At the request of either party, periodic payments can be utilized for future economic damages starting at $250,000 (presently at $50,000).

Modifies the contingency fee caps to 25% if the action is settled prior to the filing of an action and 33% if the recovery occurs thereafter. If an action goes to trial the court has discretion to alter the fee based on good cause evidence.

The bill provides for protections for providers who make statements about fault prior to litigation

MICRA’s stated justification was to keep healthcare providers as a whole financially solvent, thus lowering the cost of healthcare services and increasing their availability. MICRA’s constitutionality was repeatedly challenged during the 1970s and 1980s, but most of it was eventually upheld as constitutional under rational basis review by the Supreme Court of California or the California Courts of Appeal.