Damage Cap Hits Some Hard

California's landmark medical malpractice law has reduced jury awards by 30%, but the savings have come largely at the expense of severely injured or impaired patients, according to a study released Monday.

The 1975 law caps at $250,000 the amount a patient can recover for noneconomic damages, such as pain and suffering, distress and disfigurement. There are no caps on economic damages, such as lost wages and medical expenses.

The Rand Corp. study stopped short of assessing the effect on malpractice insurance premiums. But proponents of a bill in Congress that would institute a national cap pointed out that premiums in California have risen less than the rate of inflation, and substantially less than they have in the rest of the nation, since 1975.

In its study of 257 jury awards in California malpractice cases from 1995 to 1999, Rand, a Santa Monica think tank, found that:

* In 45% of the cases, judges had to cut the pain and suffering damage awards by juries -- who are not told about the cap -- to conform with the $250,000 limit. The typical reduction was $366,000.

* Patients with the severest injuries, such as brain damage or paralysis, typically had their awards reduced by more than $1 million each.

* Infants' malpractice damage awards were cut 71% of the time, often by $2.5 million or more.

The study said the law's effect was most striking in cases in which patients' injuries led to modest financial hardships but whose quality of life was greatly diminished.

In one case cited in the study, a jury awarded $78,000 for economic losses and $1.5 million for pain and suffering to a 42-year-old woman who underwent an unnecessary mastectomy after her fibrocystic breast condition was misdiagnosed as cancer. Under the cap, the judge reduced her total award to $338,000 -- 78% less than what the jury deemed appropriate.

The cap has come at a high price for many, said Bruce G. Fagel, a physician and malpractice lawyer.

"The limitation of noneconomic damages has the greatest impact on wrongful-death cases," Fagel said. "In a perverse sense, it is far cheaper for a doctor to kill a patient than to merely injure them."

One of the chief goals of California's malpractice cap was to keep medical malpractice premiums affordable for doctors by limiting insurers' payouts.