Cap on Malpractice Damages Isn’t Just

The Medical Injury Compensation Reform Act (MICRA) was enacted approximately 20 years ago. Twenty years ago, the Legislature believed that a cap on general damages of $250,000 would be fair in limiting the exposure of doctors in malpractice actions, thereby, they reasoned, limiting the ultimate premium that the doctors paid. Needless to say, $250,000 in 1975 dollars is not the same as $250,000 in 1995 dollars.

I have had the sad experience of sitting with many family members who in disbelief repeated back to me, “You mean my child was only worth $250,000?” These family members had lost a loved one because of medical malpractice. Yet the limitation for death of a loved one remains $250,000 in a medical malpractice action.

The plaintiff’s bar is equally as concerned about the issues relating to MICRA and the cost of health care. However, in creating MICRA, the Legislature created a system that is out of control. Doctors know that they are limited in exposure for general damages to $250,000. The insurance company cannot settle the case unless the doctor agrees. Since the doctor has virtually nothing to lose by going to court (90% of all malpractice cases end in a verdict for the doctor, largely because of the jury bias toward the medical profession), the doctor frequently will not consent (to settle), even when the case is clear.

To be fair in evaluating how well MICRA works in California, I suggest the Legislature speak to some of the victims of medical malpractice. These people have been betrayed by the doctors, the Legislature, and ultimately by the courts. The plaintiff’s bar working in this area of the law has more than an uphill battle to obtain just compensation for the injuries.

MELANIE R. BLUM

Blum and Roseman

Orange