Column: Compromise unlikely in fight over medical malpractice cap

You’d think this would be a simple problem to fix: The unfair low limits on pain and suffering awards in California medical malpractice suits.

But few things of genuine importance are simple in California’s innately pugnacious Capitol.

There’s greed, ill will, stubbornness, hubris, vindictiveness, indifference (doesn’t affect me), cowardice — all the human traits that politicians bring to Sacramento from the citizenry they represent. And too often these characteristics aren’t tempered with people’s counter-attributes of fairness, compromise and common sense.

Moneyed interests and political survival dominate. And that’s even before party partisanship rears its head.


Yes, that’s cynical. But it’s also reality.

One needs to look no further than the decades-long medical malpractice battle for a classic example.

In 1975, doctors were threatening to retire or flee the state because malpractice awards were rising and their insurance premiums climbing even faster. Healthcare delivery was jeopardized.

The Legislature and new governor, Jerry Brown, overreacted. And the piqued trial lawyers erred badly by letting them.

The medical profession and insurers sponsored legislation to cap pain and suffering awards at $250,000. The legislative author offered an amendment to annually adjust the cap for inflation. But the lawyer lobby joined the medical cabal in opposing the significant tweak.

Thought the lawyers: Why make a bad bill better and improve its chances of becoming law? Surely a Democratic-controlled Legislature would never pass a measure opposed by its patron trial lawyers. And a Democratic governor would never sign it.

Really bad thinking.

Nearly 40 years later — despite court challenges and start-and-stop legislative efforts — the cap still stands at $250,000.


Putting this in perspective, if that cap had been indexed to match inflation it currently would be worth $1.1 million. Put another way, today’s $250,000 was worth only $57,600 in 1975 dollars.

So if $250,000 was acceptable to the governor and Legislature in 1975, why wouldn’t $1.1 million be today? Pretty simple, you’d think. Hardly.

There are other payouts in medical malpractice cases. There is no cap on awards for economic losses, such as being deprived of potential wages or for future healthcare expenses.

So if a roofer is permanently paralyzed from a botched surgery he can collect for lost income and care costs. But if the roofer’s kid or unemployed spouse dies because a doctor screws up, he’s limited to $250,000 for pain and suffering.


Here’s the argument for inflation adjustment, according to Bruce Brusavich, a Torrance medical malpractice lawyer and former president of Consumer Attorneys of California:

“These cases are so expensive to prosecute,” he says. “You need a medical expert to opine malpractice. Typically you need multiple experts. They cost $75,000 or more. Court fees have been going up and up. And because of court closures, there’s a two-year delay in L.A.

“Because of the cost of suing and the limited recovery, someone comes in and says, ‘My retired spouse was killed because of malpractice’ or, ‘My child died because of medical mistakes,’ we have to tell them we did look at the records and there was too much medication, but sorry, we just can’t represent you. That case has too low a damage cap.”

And that doesn’t just cheat the victim’s family or ding the lawyer’s pocketbook, Brusavich contends.


“It harms everybody,” he says, “because lack of accountability for medical mistakes is pretty rampant out there. It’s outrageous. The lack of financial accountability promotes more malpractice. Malpractice lawsuits actually promote safer medicine.”

The lawyer and his side cite numbers indicating that preventable medical errors are the third-leading cause of deaths in the U.S. behind heart disease and cancer.

OK, that’s their case. The medical profession also has one. It naturally fears higher costs. Health clinics especially do.

“We’re trying to get ready for big changes happening in [Obamacare] health reform,” says Louise McCarthy, president and chief executive of the Community Clinic Assn. of Los Angeles County, which represents 85 organizations and annually serves 1.3 million patients, mostly low-income.


“We’re struggling to compete for doctors’ salaries. If there were to be a rise in caps, we fear costs would skyrocket at a time when clinics really are struggling to meet ends meet and we’re being called on to expand services.”

You hear that many places.

“I feel like the sky is falling,” says Kathy Kneer, president of Planned Parenthood Affiliates of California. “Our Medi-Cal reimbursements rates are the 48th lowest in the nation. You put more pressure on docs by forcing them to buy higher insurance coverage and they won’t do high-risk pregnancies.”

The current brawl is over a proposed lawyer-sponsored November ballot initiative that would adjust the cap for inflation. Senate leader Darrell Steinberg (D-Sacramento) has been conferring with both sides, trying to persuade them to compromise. But the ballot backers already have collected enough signatures to qualify the measure and are facing a March 24 deadline to turn them in or lose leverage in the Legislature.


Problem is, the sponsors have gimmicked up the initiative in an effort to attract voters and have angered medical providers. Because it polls well, a provision has been inserted to require random drug and alcohol testing for physicians who work in hospitals. After all, it’s argued, airplane pilots are tested.

Also, to fight the prescription drug epidemic, there’s a provision requiring doctors to use a state database that attempts to track patients’ prescription histories.

Drug testing and databases may be good ideas. But they’re off point from unfair damage awards. They could attract voters — but also could confuse them.

A legislative compromise looks unlikely. The politicians and interests don’t seem up to it. Look for a big bucks ballot blowout that enriches a lot of consultants.