State Cap on Damages Appeals to President
For a long time, the only thing President Bush found to like about California was the reflectable glow of our governor.
But lately, in speeches such as Wednesday's State of the Union address, he has alluded to one of our great legal innovations as just the thing to solve a big national problem.
That problem is medical malpractice lawsuits, which we're told are a major culprit in soaring healthcare costs. Dr. Bush's prescription is a federal statute modeled on the 1975 California law that cracked down on malpractice claims.
The Medical Injury Compensation Reform Act, or MICRA, supposedly has kept California malpractice premiums low in comparison with other states, without limiting access to the courthouse for deserving patients one bit. It also has purportedly put a leash on all those greedy and unscrupulous lawyers who pocketed the money that should have gone to patient care.
It all sounds too good to be true -- and it is.
MICRA's effect on malpractice premiums is almost impossible to measure, but the signs aren't encouraging. It has shut the courthouse door to huge numbers of deserving patients and, worse, harmed certain types of victims, including women and the families of dead children, more than others. Certainly, it has put a leash on unscrupulous lawyers -- but on scrupulous ones too.
Its appeal to the president is that it sounds good. But then Bush's version of the healthcare mess is his usual bozoid oversimplification of the truth.
According to the White House transcript of a speech on medical costs delivered last month to, I'm sure, a randomly chosen audience, it goes like this: "Many of the costs that we're talking about don't start in an examining room or an operating room. They start in a courtroom. (Applause.)"
So let's take a look at MICRA, which a panicky Legislature passed after the state's dominant malpractice insurer had jacked up rates by more than 300% for two straight years, provoking a "crisis." (The insurer later settled a lawsuit alleging rate rigging by agreeing to refund $47 million to overcharged physicians.)
MICRA imposes a $250,000 cap on noneconomic damages -- what is commonly called "pain and suffering" -- and imposes a sliding scale of maximum fees on lawyers, who used to collect an average one-third of jury awards (but who also paid for trial expenses for this uncommonly costly litigation out of their own pockets).
