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Prop. 46: Drug-testing doctors and raising the cap on ‘pain and suffering’ damages in medical malpractice cases

Stephen Sugarman, Roger J. Traynor Professor of Law | October 31, 2014

Described as a “patient safety” measure, this initiative would do two primary things. First, and the central reason for it being put on the ballot, Prop. 46 would increase from $250,000 to a little over $1 million the amount of money that can be awarded for “pain and suffering” to victims who successfully win medical malpractice cases, and in the future that “cap” would be raised along with increases in the cost of living. Second, and simplifying a bit, Prop. 46 would subject California doctors to a random drug testing regime.

I will only say a few words about the latter, as it is outside my area of expertise. It is true that some doctors are addicted to drugs and as a result are poorly performing their services; and in some cases they are badly injuring their patients. It is also true that some doctors are abusing their role by prescribing addictive drugs to certain patients when they should not be doing so.

Whether the regime contemplated by Prop. 46 is the right way to deal with these problems is another matter. Maybe so. Probably, a legislature seriously interested in doing something substantial about these problems could come up with a much better regime. Will that happen? Probably not, but maybe.  My point is that one could sensibly be against, or possibly for, Prop. 46 solely because of the drug testing part of the initiative. I leave that issue to others.

Increasing the cap

I will focus instead on the portion of Prop. 46 that would increase the cap on pain and suffering awards.

As of early October, about $12 million had been raised in support of the measure – most significantly from plaintiff personal-injury lawyers and their friends. And more than $50 million had been raised by opponents – virtually the entire healthcare industry and its friends. While these opponents are against the drug testing part of the plan, they seem most upset about the projected hike in malpractice awards.

Yet focusing on the increase in pain and suffering awards alone, there is considerable merit to the proposal.

Forty years ago, during Gov. Jerry Brown’s first term in office, doctors won a big victory over lawyers. Since then, those who commit medical malpractice have all sorts of legal advantages over everyone else who is sued for wrongfully injuring other people. Most importantly for purposes of Prop. 46, the amount of pain and suffering damages that can be recovered in medical malpractice cases was capped at $250,000. At the time, many thought this was a reasonable ceiling.

Yet even then it seemed odd to many that in California if a doctor botches surgery and makes you a quadriplegic, your pain and suffering damages would be $250,000. But if someone else carelessly makes you a quadriplegic (like a bus driver or a defective product), you are very likely to win several million dollars in pain and suffering damages. Nonetheless, our California Supreme Court upheld this difference in treatment.

Over the years, the real purchasing power of $250,000 has obviously decreased. Had the original legislation tied that figure to inflation, it would be a bit over $1 million today. Many think this is only fair, and that is what Prop. 46 would do.

International comparisons

In Canada, for example, the Canadian Supreme Court long ago capped pain and suffering damages at $100,000 to be adjusted for inflation; that figure is now more than $300,000. To be sure, $300,000 is closer to $250,000 than to $1 million. But there are many differences between the U.S. and Canada, one of which will be emphasized here.

In Canada, if you win a lawsuit against a careless doctor, the doctor has to pay your legal fees (or at least most of them). In the U.S., the victim has to pay his or her legal fees out of the total award that is made. This makes a huge difference.

My research shows that in serious injury medical malpractice cases in California, the victim’s legal fees generally take all of the pain and suffering damages plus a big chunk of the damages that were supposed to pay for past and future medical care and a lifetime of lost earnings. This is not true in Canada. Nor is it typically the case in California when someone has been rendered quadriplegic by a non-medical wrongdoer.

Put differently, on a net basis, California victims who are very seriously injured by medical malpractice are worse off in terms of their recovery for pain and suffering than those in 20 European Union countries and several other countries around the world that I have studied. Even in the least generous Western European nations (for this purpose) like Greece, Denmark, Portugal and Sweden, very badly disabled victims of negligent conduct at least wind up with some net recovery for pain and suffering and do not have to dip significantly into the rest of their recovery to pay their lawyer as happens in California today.

It probably would be a good idea for California to change our law in a number of ways, including having a losing defendant in personal-injury cases pay the legal fees of the victim. But that is not on the table.

What’s a fair sum?

If our law were changed as Prop. 46 envisions, then our quadriplegic victim today would recover just over $1 million in pain and suffering damages that would probably be enough to pay his or her legal fees with a small amount left over. That would make California more like Denmark and Sweden (and far less generous than countries like Italy, Germany and England). That seems a lot fairer than the current regime.

Opponents claim that Prop. 46 would raise healthcare costs for all of us, since those in the healthcare professions would have to pay more for their medical malpractice insurance. That is true.  But we are probably talking about an annual increase in the cost of health insurance of less than $10 per person. Opponents’ claims of $250 per person seem wildly exaggerated.

Many would probably feel that $10 a year is a fair sum to contribute in order to assure that if you were seriously injured as a result of medical malpractice, you would be awarded enough both to pay your lawyer and cover your lost income and medical expenses, as well as having a modest sum left over for your pain and suffering. Even with this increase in the “cap” remember that, as a bow to the healthcare industry, your recovery would still be considerably less than it would be if some other careless, well-insured party rendered you quadriplegic.

Opponents also claim that doctors facing increases in malpractice insurance costs because of Prop. 46 will retire or leave the state in droves. Don’t believe them. Past experience tells a different story. In due course, as just noted, those higher premiums will be passed on to employers and consumers in the form of very small increases in the cost of health insurance.

Comments to “Prop. 46: Drug-testing doctors and raising the cap on ‘pain and suffering’ damages in medical malpractice cases

  1. With regard to the “cap,” please take note that… even if one believes that the cap is an effective means to keep scumbag lawyers on a leash while still fully compensating victims of hack doctors, the amount which our legislature thought to be the perfect amount was $250,000… in 1975… it is now 2014… inflation has reached us in every area… there should be no reasonable argument against the notion that a dollar is 1975 bought more than it does in 2014. An adjustment for inflation to 2014 values should be acceptable… even for those promoting the cap.

    Another point to make is that MICRA is absolutely discriminatory in its effect… the limit on pain and suffering of $250,000 is very often the limit of the entire case when it comes to the elderly and more often than it should be when it comes to women and minorities… Punitive damages? There are no punitive damages in medical malpractice cases… Lost wages? People over 65 are retired and women and minorities earn less than white males. Medical Costs? People over 65 have MediCare so there is none, and people on MediCal have none either. People, think before you vote. This law hurts the elderly and women and minorities and the poor… the very people who seem to NOT get the best medical care in the first place.

    As a medical malpractice attorney AND physician, I found it difficult to read most of the Internet posts on this topic due to the misinformation, the hatred toward lawyers, the dramatic boo hoo me posts from physicians, and such. It’s really a very simple issue when boiled down. There are of course many great opinions posted, too bad they are often obscured by many over the top replies.

    When I look into taking on a medical malpractice case, I know that physicians are not held to a standard of perfection or even to the standard of being the best or even almost the best in their field… They are held to the standard of care for their community and peers. The California legislature has made the legal procedures and rules for medical malpractice cases different from other areas, and done so with a purpose – that purpose being protection of doctors… and while there are many who see protecting doctors as a bad thing, it is not in and of itself really so… some doctors should be protected while others should not get the extra-legal shield afforded by the law.

    Physicians provide an extremely valuable services to the public and one that requires an enormous amount of skill and brain power to provide. correctly – all in a field which is not black and white science but science and art combined – lives are at stake, opinions vary, advancements in science abound, no two patients are alike, etc. In addition, medical-malpractice cases are extremely expensive and difficult to bring (properly, that is… anyone can slam together an unintelligible complaint and pay the filing fee). To make a suit “worth it,” there needs to be significant damages – and damages that would not have occurred otherwise. As a generalized example, a one month delay in treatment, that is just as effective one month later as it would have been earlier is not going to provide significant damages.

    The current law makes bringing frivolous or even low dollar suits economically destructive for an attorney… as it stands now, those of us who know what we are doing will only take the high dollar cases… the hard costs of suit are enormous (as medical experts now regularly charge upwards of $800 an hour for testimony).

    As for people who figure this is someone else’s problem… I hate to remind people that the victims of medical malpractice never thought they would be victims before they were… they were plain old people who trusted doctors and such prior to their “incident” (as defense counsel like to callously call it). Their lives are ruined and they deserve fair compensation… since medical injury cannot be undone, all the courts can offer is money.

    – Paul
    Paul J. Molinaro, M.D., J.D.
    Attorney at Law, Physician

  2. I don’t know what “past experience” you are referring to: MICRA has withstood every attack by the CTLA, it has never happened! I recently retired and I can tell you (as a FACT) that prior to MICRA I altered the scope of my practice due to the cost of liability insurance. If MICRA had been altered as proposed I WOULD have retired!

    You are quite simply siding with your predatorial peers. I assisted on the plaintiffs’ sides in two malpractice cases, both of which resulted in greater than $1M settlements: neither the victim/plaintiff or plaintiffs’ attorneys felt abused by MICRA’s limits. The change in “pain and suffering” limits will hurt the public far more than it will help them. YOU ARE WRONG!

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