Craig Backer of Caliente, near Bakersfield, suffered headaches for five years and eventually lost hearing in his left ear. Although the former Marine visited a Veterans Affairs hospital half a dozen times, doctors told him his condition was temporary and never performed advanced screening tests, according to his family.
Last spring, Backer began having problems with his vision and returned for a battery of exams. Doctors discovered that he had a large brain tumor and scheduled surgery days later. It was successful, but Backer remains in the hospital and can't talk. He is also learning how to swallow again, and the left side of his face droops. Doctors say they don't know if he will improve.
His wife, Jeriah, wants to sue but the case is subject to California's malpractice cap. Six lawyers have turned her down. One told her that because her husband didn't earn a large income as a mechanic, the case wasn't feasible. "We're living a nightmare," she said.
Linda Fermoyle Rice, one of the state's best-known malpractice lawyers, says the law often leads to difficult trade-offs.
"It has had the effect of making an infant who is severely injured more valuable than those who don't make it, since families of children who die are limited to the cap," said Rice, who is based in Woodland Hills. "It's sad to say, but most attorneys I know won't take a dead-baby case."
A 2003 Rand Corp. report found that the law has reduced jury awards by 30%, and that the savings have come largely at the expense of severely injured or impaired patients.
On average, California juries (which are rarely informed of the cap during trials) awarded $800,000 in malpractice death cases from 1995 to 1999, but the amounts were later reduced to $250,000 under the law. This suggests that medical malpractice victims and their families could be reaping much larger payouts than the law allows. But proponents of MICRA say raising the cap could harm patients.
"Raising the MICRA cap would significantly increase healthcare costs, limiting patient access to doctors, hospitals and clinics throughout California," said Lisa Maas, executive director of Californians Allied for Patient Protection, a trade group. "MICRA protects patient access to healthcare."
San Diego obstetrician Philip Diamond is skeptical that the law is keeping patients from obtaining malpractice lawyers. But he acknowledged that limits on payouts do lead to trade-offs.
