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Voters may decide medical malpractice cap

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SACRAMENTO — A protracted political battle over California's medical malpractice law may be coming to a new front: the voting booth.

For decades, trial lawyers and consumer groups have railed against limits on certain damages in malpractice cases, arguing that such restrictions deny victims fair compensation for grisly medical mistakes.

Insurance companies, doctors and other healthcare providers have been equally vigorous in defending the law, saying it is crucial to controlling costs and maintaining the availability of care.

Now, the lawyers' side has proposed a ballot initiative that would raise the limits on malpractice awards for pain and suffering. The measure would appear on the fall ballot, but both camps are already amassing war chests and firing opening shots in what would certainly be a bruising and costly fight.

"Visions of dollars signs are dancing in the heads of political consultants up and down the state," said Bruce Cain, professor of political science at Stanford University. "This is a big-time bonanza for them."

If the measure makes the ballot, it will unleash a torrent of negative advertising about greedy lawyers and negligent doctors.

The initiative's backers have until March 24 to submit signed petitions to place their proposal on the ballot.

California's Medical Injury Compensation Reform Act was crafted in 1975, when Gov. Jerry Brown convened a special legislative session to address skyrocketing liability insurance costs that fueled concerns doctors would flee the state.

Under the law, patients who sue for malpractice can recover no more than $250,000 for noneconomic damages such as pain and suffering. The law also limits attorneys' fees based on damages. There is no cap on economic damages, such as compensation for medical bills or lost wages.

Physicians and insurance companies say the limits have kept liability insurance rates in check. Changing the law, they assert, could increase those rates enough to put community clinics out of business.

And many healthcare providers, already worried about the federal Affordable Care Act's effect on their bottom lines, fear a surge in healthcare costs as doctors rely on more tests and procedures to guard against lawsuits.

Trial attorneys argue that medical malpractice premiums are a tiny fraction of healthcare spending. They say the damage limits, which have not been adjusted for inflation, make it economically impossible for them to take on many malpractice cases.

The lawyers have unsuccessfully challenged the limits in the courts and the Legislature.

The law's defenders, in the meantime, have expanded their coalition of insurance companies and physicians to include other medical providers such as Planned Parenthood and community clinics, as well as some labor groups. A dedicated advocacy organization, Californians Allied for Patient Protection, focuses on fending off those who want the law changed.

Brian Kabateck, past president of Consumer Attorneys of California, said his industry's political clout in the Capitol was at stake in the push to revamp the law.

"At some point, our members feel, you just have to turn and fight," Kabateck said.

The proposed measure would adjust the pain-and-suffering cap to account for inflation since 1975. That would raise it to about $1.1 million, various analyses show. The cap would also be indexed to future inflation rates.

This year, there's a new spin on the old conflict: The proposal also would require hospitals to randomly test doctors for drug use and require physicians to check a statewide prescription drug database before prescribing certain medications, to clamp down on abuse.

So far, California's political leaders have mostly stayed out of the fray. Brown has made few public comments about the push to alter the law, which he signed in his first term as governor.

State Senate leader Darrell Steinberg (D-Sacramento) has said he's looking into possible legislation that could avert a nasty ballot fight.

"Initiatives should be a last resort," Steinberg told reporters last month.

But the doctors' lobby is unlikely to accept a legislative deal, said Dustin Corcoran, chief executive of the California Medical Assn.

"I couldn't think of a worse time to increase healthcare costs and decrease access to care," he said.

The measure's backers have raised $1.7 million so far, mostly from law firms and individual attorneys, as well as from the advocacy group Consumer Watchdog. They have spent $800,000 circulating petitions.

Kabateck, who is leading the fundraising effort for the consumer attorneys, estimated his side would raise $10 million.

The opponents' cash advantage is already apparent. They have raised more than $33 million, including several multimillion-dollar contributions from medical malpractice insurers. Most of the haul is in the form of loans, which allows the money to be returned if the initiative does not go forward.

The doctors and their allies have been steadily raising the alarm through social media and emails to supporters. They've produced pamphlets to be distributed at physicians' offices, in English and Spanish, asserting that patients' access to affordable healthcare is under siege from unscrupulous trial attorneys.

But most of the early salvos have come from the initiative's backers, who paid for billboards criticizing the pain-and-suffering cap and advertising a toll-free number to report drug- and alcohol-impaired doctors.

They're also sending elected officials graphic videos about victims of malpractice. One is Annette Ramirez, a South Bay mother of two who underwent an elective hysterectomy in 2012 and ended up losing her arms and legs due to infection after her colon was perforated during surgery.

Ramirez sued her hospital and eight doctors for malpractice; her case was ultimately settled.

"Two hundred fifty thousand dollars is not going to cover my pain and suffering, ever," Ramirez said, adding that the cap is "almost an insult."

melanie.mason@latimes.com

Copyright © 2014, Los Angeles Times
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