News Room

Accountability for medical negligence: It’s time for change

Written on Behalf of Brian S. Kabateck

July 21, 2017

For decades, Californians injured or killed by negligence in our health care system have been denied justice and proper compensation due to the Medical Injury Compensation Reform Act of 1975, known as MICRA.   

California’s failure to pass Proposition 46, the Medical Malpractice Lawsuits Cap and Drug Testing of Doctors Initiative, leaves in place the current cap of $250,000 on non-economic damages that can be claimed in medical negligence lawsuits. As patient advocates and other supporters of the initiative work to get the State Supreme Court to overturn the cap, other states have struggled with their own versions of the cap.

Wisconsin’s previous cap–at $750,000, still three times that of California’s–was recently ruled unconstitutional in an appellate court, awarding a quadruple amputee millions of dollars for pain and suffering because the amputations could have been prevented without medical negligence.

The appellate court’s ruling was opposed, predictably by those in the Wisconsin Hospital Association and Wisconsin Medical society, who argue that caps help to attract good doctors and provide an atmosphere where the physicians can offer quality care without fear of catastrophic malpractice suits. Wisconsin’s Supreme Court will review the appellate decision.

Florida’s Supreme Court has itself declared that their 2003 cap law is unconstitutional. Originally the law was passed to stem the exodus of doctors fleeing the state due to high malpractice insurance premium rates; however, in the court’s decision, the four member majority ruled that “the caps on ‘non-economic’ damages violated equal-protection rights…and that there is no proof that they reduced malpractice insurance rates.”

At the federal level, the U.S. House has passed an anti-cap bill that may struggle to be passed in the Senate–and therefore unlikely to become law. The Protecting Access to Care Act would keep medical malpractice caps for healthcare provided or subsidized by the federal government at the same amount as California’s low $250,000–which would be a tragedy for patients facing the real harms of substandard medical care.

The arguments advanced by Florida’s Supreme Court majority have been echoed in Wisconsin; the appellate court cited data that states without caps have “higher physician retention rates than Wisconsin,” and Wisconsin physicians are protected by a state fund that covers malpractice judgments that exceed their insurance coverage limits. Wisconsin and Florida also do not face a crisis of medical malpractice suits; data shows only 84 cases filed in the state court in 2014, and Florida’s Supreme Court has affirmed there is no crisis in their state.

While doctors take an oath to “first do no harm,” those that break the oath must be held accountable. More importantly, patients deserve full compensation after medical malpractice to manage a severely compromised quality of life, one in which their ability to earn a living or live pain-free may be impossible. Patients take a risk when entrusting their health and well being to doctors who have already minimized their risk with years of training and malpractice insurance.

By taking the fight to end cap limitations to the California Supreme Court, patient advocates hope that a final ruling in their favor will put the lives of people over the cold actuarial tables of insurance companies.

If you or a loved one has experienced a catastrophic injury you must learn more about your legal rights to receive benefits which you are entitled to if your injury is due to a negligent party. Give one of our experienced personal injury attorneys at Kabateck LLP a call today to learn more about recovering damages and to explore your options. Our accident lawyers in Los Angeles can help you achieve the maximum compensation for the harm you or a loved one has suffered.