Several states have set their malpractice caps considerably higher than California's because of worries that they affected poorer patients the most. Some state courts have begun to examine the fairness of their malpractice laws, especially those not tied to inflation. California lawmakers have rarely reconsidered the state's malpractice legislation.
Yet a Times analysis of state court records, physician payment data and insurer financial records suggests that the cap is increasingly preventing families such as the Stewarts from getting their day in court.
Among the findings:
* Court malpractice filings have fallen in eight of the 10 most populous counties in California that track such information. In Los Angeles, they're down 48% since 2001 to their lowest per-capita level in nearly four decades. In Orange County, they fell 29% over the same period
* At Kaiser Permanente, where members must resolve malpractice claims in arbitration rather than court, claims have fallen almost 20% since 2001.
* The number of payments to victims and their families across the state was down 24% since 1991, according to a review of a federal government database of nearly half a million claims. Nationally, the decline over the same period was 10%.
* The malpractice earnings of California insurers has far outpaced national averages in recent years. According to financial reports, insurers in the state have paid out just 39 cents of every premium dollar since 1991. The national average was 63 cents.
Proponents of the law attribute the state's recent decline in malpractice lawsuits to several reasons unrelated to its award cap, including a slight drop in overall personal injury cases nationwide and a possible decrease in medical errors in recent years.
Some states have seen larger per-capita declines in malpractice cases than California, after they enacted caps on medical malpractice awards.
A spokesman for Kaiser Permanente said its drop in malpractice filings was the result of a company program begun five years ago in which doctors apologized to patients for errors rather than wait to fight the accusations in court.
Some malpractice victims and their families say the benefits of the law have swung too far in favor of doctors. Without accountability, some ask, what will keep physicians from making careless mistakes?
