Bills Would Lift Some Caps on Malpractice Awards

Reopening the war over medical malpractice lawsuits, trial attorneys are backing two bills aimed at partially lifting caps on malpractice damages, prompting California physicians to mount a major effort to kill the measures.

The bills by Assemblywomen Sheila Kuehl (D-Santa Monica) and Carole Migden (D-San Francisco) would create exceptions to California’s landmark Medical Injury Compensation Reform Act of 1975.

That law permits medical malpractice victims to collect their actual damages for lost wages, medical costs and other similar expenses. But the law puts a $250,000 cap on what malpractice victims can recover in court for the less tangible damages known legally as “pain and suffering.”

“Nobody else wanted to touch it because doctors were so adamant,” Kuehl said.

Migden and Kuehl are opening the fight today with a news conference featuring medical malpractice victims who were unable to collect more than $250,000 for pain and suffering.

Their losses range from a woman who cannot walk without crutches, to a husband whose wife died after a doctor refused to refer her to a specialist, to a child who was injured at birth after being delivered by a midwife rather than a physician at a health maintenance organization.

Migden’s measure takes aim at health maintenance organizations and health insurance companies. It would remove the $250,000 cap on damages for injured patients if doctors who caused the injury gained financially by refusing or delaying treatment, or by refusing to refer patients to specialists.

Kuehl’s bill would lift the $250,000 in specific instances--when, for example, a doctor causes death through “gross negligence,” negligently injures a child under age 14, causes injury while he or she is drunk or on drugs, or sexually abuses a patient.

“These bills seek to restore the balance between too much medicine and too little protection,” Migden said Wednesday.

“Victims are not being fairly compensated, particularly the most catastrophically injured victims,” said Ken Sigelman, a San Diego attorney who specializes in medical malpractice cases and is a retired physician.

Sigelman is a member of the Consumer Attorneys of California, the main trial lawyers group and the leading proponent of the measures.

Physicians and their lobbyists are declaring the bills to be their main target for defeat in 1997.

“This is Ground Zero for the California Medical Assn.,” said Mike Mattoch, lobbyist for the physicians group. “It is a very big fight. A lot of resources are going to be wasted in this fight.

“There’s a certain percentage of the trial lawyers’ membership who feel they are not making enough money on these cases,” Mattoch said, describing the bills as “a full frontal assault” on the protection given doctors by the 1975 law.

Before the law went into effect, awards for pain and suffering were rising into the millions, which in turn sent malpractice insurance premiums soaring into six figures for some medical specialists.

“These two bills are an attempt to destroy a system that has worked,” said Dr. Brian Johnston, an emergency room physician at White Memorial Hospital in Los Angeles and president of the Los Angeles County Medical Assn. “Most people have forgotten, but 20 years ago our system was nearly brought to a halt by medical malpractice premiums.”

Johnston estimates that his malpractice insurance premiums, now $30,000 a year, would double or triple if the bills are signed into law.

Kuehl and Migden acknowledge that they may not win passage of the measures this year.

“It will be a hurdle in every house. We’re not delusional,” Migden said, adding that passage this year is “slightly improbable,” but that the measures are sure to generate debate that could result in legislation in 1998.

Others say that if the bills fail, advocates of the measures may turn to the ballot by pushing a statewide initiative.