Dan Walters: Medical malpractice issue again hits California Capitol

dwalters@sacbee.comAugust 4, 2013 

One of the Capitol's longest-running battles – over the state's $250,000 cap on pain and suffering damages in medical malpractice lawsuits – is heating up again.

Consumer Attorneys of California, whose members press malpractice suits, wants the Legislature to lift the cap or repeal it.

Meanwhile, a wealthy man whose children died in an auto accident caused, he says, by a driver overmedicated by prescription drugs, and Consumer Watchdog, a Southern California organization, have filed a ballot measure to more or less do what the lawyers want the Legislature to do.

The attorneys say the Consumer Watchdog drive is independent, but it stretches credulity to believe that the twin drives are coincidental.

No legislation has surfaced yet, but before the legislative session ends in mid-September, something will happen, or at least will be attempted.

The fight over the malpractice cap has been simmering – and occasionally boiling over – for 38 years. A newly elected Gov. Jerry Brown signed the Medical Injury Compensation Reform Act (MICRA) in 1975 in response to medical providers' claims that their insurance market was drying up due to outrageously high malpractice awards.

Doctors' wives even camped out in Brown's foyer – albeit with down sleeping bags and catered dinners – to dramatize the issue. The lawyer lobby, then known as the California Trial Lawyers Association, didn't like what was happening – especially since MICRA also limited their fees – but were steamrollered, and apparently made a big tactical error.

Barry Keene, the legislator who carried MICRA, said in a recent email that he wanted to place an inflation escalator in the $250,000 cap, but trial lawyers opposed it, believing that a more restrictive bill would be easier to defeat in the Legislature or in the courts.

"It may have been a good bet at the time, but it lost," Keene says.

The limit on lawyers' fees was modified in the late 1980s in the infamous "napkin deal" that lobbyists worked out in a Sacramento restaurant.

Occasionally thereafter, the attorneys attempted to modify the cap. But even though they had become a major source of campaign funds for the Capitol's dominant Democrats, their efforts failed as medical providers and insurers lobbied hard against them.

So with Brown back in the governorship, lawyers and others who yearn for changes in the cap are trying again, arguing that inflation has made the $250,000 limit worth only a quarter of its original value.

But their opponents are also beating the drums, marshaling clinics that serve women and the poor to argue that raising the cap could curb their services while enriching lawyers.

The Capitol likes nothing better than a high-dollar battle between powerful interest groups, and this is a doozy.

Call The Bee's Dan Walters, (916) 321-1195. Back columns, www.sacbee.com/walters. Follow him on Twitter @WaltersBee.

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