When I consult with prospective clients about a medical malpractice claim that they have, one important issue is the cap on pain and suffering that California’s MICRA law has placed on pain and suffering damages. That means that if a doctor commits malpractice and kills your loved one, or cuts off the wrong leg or leaves you with life-long pain, the most pain and suffering that you can recover is $250,000.00. That limit was set in 1975 and it has not been increased for inflation in the 37 years that have passed. Here is a good explanation of the impact of MICRA on medical malpractice claims. I urge you to write your State Senator and Assembly Person and let them know that it is important to either change or repeal MICRA. Hopefully, you will never have to deal with its limits. But it is a bad law that shields insurance companies and leaves serious damages uncompensated.
Health Administration Responsibility Project
California’s MICRA law
When it is impossible to sue the HMO directly, as when it is protected by ERISA, it may be possible to sue a negligent treating doctor for medical malpractice, and hold the HMO vicariously liable for the doctor’s actions.
Unfortunately in California, this approach has its own problems, in the form of the Medical Injury Compensation Reform Act of 1975 (MICRA). This act limits damages recoverable in medical malpractice suits as follows:
$250,000 cap on non-economic damages
CC sec. 3333.2 says that in any action against a health care provider for professional negligence, non-economic damages, eg: for pain and suffering, may not exceed $250,000. This may make it hard to get a lawyer interested in the case.
Collateral Source Rule abrogated
In most tort cases the common law “Collateral Source Rule”, makes it reversible error for the defendant to tell the jury how much of your damages have been paid by someone else, eg: an insurer, family member, etc.
However, CC sec. 3333.1 lets them tell the jury in MedMal cases, encouraging the jury to cut your recovery by that amount.
Installment Payments
CCP sec. 667.6 allows future damages over $50,000 to be paid in installments instead of a lump sum, with the payments to stop if the plaintiff dies. This is a disadvantage to the plaintiff and his family, as the annuity is much cheaper than the lump-sum would be.
Punitive Damages
The initial complaint cannot ask for punitive damages. Under CCP sec. 425.13, a separate motion must be made at the earlier of 2 years after filing or 9 months before the first scheduled trial date, showing a substantial probability that you’ll prevail.
Other ways MICRA attempts to inhibit Malpractice suits
90 day notice before filing suit (CCP sec. 364(a))
Statute of Limitations. Suit must be filed within one year from the discovery of an injury and within three years from injury. (CCP sec. 340.5.)
Limits on lawyers contingency fees (BPC sec. 6146):
1st $50K: 40%
next $50K: 33.33 %
next $500K: 25%
everything over $600K: 15%
What can you do to minimize the disadvantages of MICRA?
MICRA (except for its arbitration provision) doesn’t apply to intentional torts.
See: Lisa M. v. Henry Mayo Newhall Mem. Hosp. 12 Cal. 4th 291, 296 (1995); Barris v. Cnty. of L.A. 20 Cal. 4th 101 (1999)
Argue that defendants are not “Health Care Providers” for purposes of MICRA, eg:
Organizations that employ HCPs, but are not HCPs themselves, such as prisons, pharmaceutical companies, medical device manufacturers, and HMOs. CC sec. 3428 specifically states that managed care entities are not health care providers under any provision of law. (Flores v. Navidad Med. Ctr., 192 Cal.App.3d 106 (1987))
Earlier tortfeasors, such as the car driver that hit the plaintiff before the doctor negligently treated his injuries. These earlier tortfeasors may be responsible for ALL the plaintiffs injuries, including those caused by the doctor, and will not be subject to MICRA. (Ash v. Mortenson, 24 Cal.App.2d 654, 657 (1944))
Unlicensed Health Care Providers (Stevens v. Sup. Ct., 180 Cal.App.3d 605 (1986))
Ancillary Services, such as orderlies, technicians, medical students, janitors, aides, clerks, or administrative staff.
Even the Medical Group may not be a “Health Care Provider” in certain circumstances
“Only natural persons shall be licensed to practice medicine” (BPC sec. 2032). So a medical group is protected by MICRA only if its liability is vicariously derived from that of a physician employee.
Direct liability of the group is not protected by MICRA or CCP §425.13.
See: (Lathrop v. Healthcare Partners 114 Cal. App. 4th 1412 (2004))
MICRA will not apply if the group’s liability arises from its physician’s intentional tort.
If the liability of the group arises from Utilization Review it is doing on behalf of an HMO, then it is acting as an agent of the HMO, and so has no MICRA protection, since it is then “a managed care entity” and not a “health care provider”. Utilization review is a non-delegable HMO function under HSC §§1363.5(a), 1367.18, & 1370.
See: Cal. Assn. of Health Facilities v. DHS 16 Cal 4th 284, 329 (1997)
If the group received a periodic or fixed fee (e.g. capitation) to provide care, that would also make it a “managed care entity” under HSC §1345(f), and thus without MICRA protection per CC §3428(c).
These considerations should apply to all MICRA rules, such as arbitration (CCP §1295), statute of limitations (CCP §340.5), punitive damages (CCP §425.13).
So, be sure not to allege that the group is a medically licensed entity, and lose these advantages.
Argue that conduct is not “professional negligence”, eg:
Ordinary Negligence, eg: hospital slip & falls, falls from bed or gurney, leaving pressure stocking on too long, failure to prevent battery or sexual abuse, etc. (Andrea N. v. Laurelwood Conv. 18 Cal.App.4th 1698 (1993))
This might also include improperly performed administrative functions, such as an HMO failing to authorize a procedure deemed necessary by their own specialist, or failing to maintain safe staffing levels.
Intentional Torts. Unfortunately the Calif, Supreme Court has held that these are subject to MICRA if connected in any way with medical care.
Express Warranty. Many hospitals & HMOs are advertising the superiority of their physicians or results. A warranty cause of action should not fall under MICRA.
Minimize the effect of the Cap:
The plaintiff’s spouse can claim an additional $250,000 for Loss of Consortium.
If the judge let’s you mention the cap, stress it in summation.
If he won’t let you mention it, stress the financial losses.
Minimize the effect of the Collateral Source exemption:
Defense can’t mention Medi-Cal payments (Brown v. Stewart, 129 Cal.App.3d 331, 336-8, (1982))
Make same arguments for Medicare & state rehab services.
Argue the usual reasons for the Collateral Source rule to the jury, eg: the benefit should go to the plaintiff who paid the insurance premiums, not the tortfeasor; any windfall should go to plaintiff rather than defendant; for public funds, the tortfeasor should pay, not the public.
Periodic payments:
These are only available for the amounts the jury has identified as subject to them. None are available if there was a general verdict. And they must be requested before entry of judgment, or they should be denied. (Craven v. Crout, 163 Cal.App.3d 779, 783-5 (1985))
Have the jury compute present value of the payments, and require that THAT be periodized rather than the cost of the annuity.
Require security equal to unpaid portion of judgment.