Speaker Hits Obstacle in Raising Cap on Pain, Suffering Awards

Assembly Speaker Antonio Villaraigosa ran into a legislative roadblock Monday in his push to raise the state’s controversial $250,000 cap on pain and suffering awards for medical negligence.

The limit was imposed more than two decades ago, when the state revamped its medical malpractice system to staunch rising litigation costs. Critics, including trial lawyers and consumer groups, call it a “one size fits all” solution that is too low in the face of inflation and the declining quality of health care.

Backed by trial lawyers, who last year funneled millions of dollars to majority Democrats, Villaraigosa was poised to call for a boost in the ceiling to $475,000. But after a closed-door meeting Monday of the Assembly’s 47 Democrats, Villaraigosa could persuade his caucus only to support an annual increase tied to the inflation rate, beginning next year.

“This is an important first step,” Villaraigosa said. “Members have finally said with one loud voice that they will support” an annual increase, the speaker said.

But Villaraigosa was unable to persuade a dozen or so moderate Democrats to go along with increasing the limit. They urged him to place the proposal on hold.

Villaraigosa settled for the annual increase as a way to move along his measure, which is scheduled to be scrutinized today by the Assembly Judiciary Committee. If such an increase had been in effect last year, it would have amounted to about $10,000.

“What this shows is that the speaker understands this problem is more difficult than it might have appeared at first glance,” said Fred Hiestand, general counsel of Californians Allied for Patient Protection, which has opposed lifting the cap.

Karin Caves, a spokeswoman for trial lawyers, described the measure as a work in progress and denied any tie between campaign donations and the measure. “It’s fundamentally unfair that for 24 years nothing has changed for victims of malpractice,” she said.

Democrats on Monday also agreed to form a task force of half a dozen members to examine a number of issues related to health care, including the limit on pain and suffering damages, that might be lashed together in a more comprehensive piece of legislation later this year.

Assemblyman Scott Baugh of Huntington Beach, who leads the house’s minority Republicans, indicated that his caucus of 32 would oppose lifting the cap but might consider an annual increase tied to the consumer price index.

Gov. Gray Davis’ position is unclear.

During last year’s gubernatorial campaign, Garry South, Davis’ campaign manager, was emphatic that Davis was against lifting the cap. “That’s his position. That’s always been his position. He’s been very firm about that from Day 1,” South said last fall.

But Hilary McLean, a spokeswoman for the governor, said last week that Davis is now “examining the issue . . . and it’s my understanding he hasn’t reached a final decision.”

Last year, Davis received about $2.5 million in campaign donations from trial lawyers.

Critics of a higher cap, led by physicians, maintain that raising the ceiling would increase the cost of medical care statewide because it would drive up doctors’ malpractice insurance premiums.

They note that there is no restriction on compensation to injured patients for the cost of medical care or for lost income.

“It hasn’t been demonstrated to me that people do not get their needs taken care of when there has been damage” caused by a doctor, said Assemblywoman Helen Thomson (D-Davis), who opposes changing the limit.

But Thomson said the annual increase proposed on Monday is “rational.”

Twenty-five years ago, Thomson, a nurse and the wife of a psychiatrist, was among those who conducted a sit-in at Gov. Edmund G. “Jerry” Brown Jr.’s office to protest skyrocketing medical malpractice insurance rates. Brown called a special session of the Legislature, and a compromise was forged that froze awards for pain and suffering at $250,000.

Two years ago, Assemblywoman Sheila Kuehl (D-Santa Monica) attempted to lift the cap, but her proposal stalled.

Critics of the law say limited awards are not fair to innocent victims of malpractice.

“Anything short of a complete adjustment for inflation, which would raise the cap to about $800,000, is not going to make a big difference for most patients,” said Jamie Court of the Foundation for Taxpayer and Consumer Rights.