Fight to Protect MICRA!
TABLE OF CONTENTS:
MICRA Timeline: Where Are We Today?
- October 24, 2013: Secretary of State Debra Bowen announces that Robert S. Pack, the proponent of the new initiative, may begin collecting petition signatures for his measure. Mr. Pack must collect signatures of 504,760 registered voters — the number equal to 5% of the total votes cast for governor in the 2010 gubernatorial election — in order to qualify it for the ballot. The proponent has 150 days to circulate petitions for the measure, meaning the signatures must be collected by March 24, 2014.
- July 24, 2013: California’s trial lawyers — via Robert Pack, who has aligned himself with Consumer Watchdog and Consumer Attorneys of California — make good on their May threat to ask voters to repeal MICRA by submitting language to the California Attorney General, the first step in a long and expensive process to qualify a measure for the ballot. The trial lawyers must gather 500,000 valid signatures to place the measure before voters in November 2014. The initiative’s main provision would increase the cap on non-economic damages from the current $250,000 to more than $1.2 million, with automatic increases every year. Its other provisions relate to physician drug testing and prescription drugs, but — make no mistake — the main purpose is to change MICRA to make it easier for lawyers to file lawsuits against doctors, hospitals, community clinics, and other healthcare providers, thereby generating big paydays for themselves.
- May 2, 2013: A coalition — including Consumer Attorneys of California and the trial lawyer-funded Consumer Watchdog group — announces intentions to seek to overturn MICRA through legislation or, failing that, a ballot initiative.
MICRA Timeline: How Did We Get Here?
- Early and Mid-1970s: California’s physicians are embroiled in a malpractice insurance crisis. Driven by frivolous lawsuits and excessive jury awards, medical liability insurers levy massive insurance premium increases and cancel insurance policies for many physicians across the state, throwing California’s healthcare system into crisis. Following are sample articles published in the winter of 1975: “New Bay Area Crisis in Medical Care: Doctors Might Halt Practice” (San Francisco Chronicle); “Insurance Rates Peril Medical Care” (San Jose Mercury News); “Doctors Face Insurance Crisis — May Affect 8,000 in Southland” (Los Angeles Times).
- May 13, 1975: CMA leads more than 800 physicians, nurses, lab technicians, and hospital personnel in a Capitol rally calling on Gov. Brown to convene a special session of the Legislature to deal with the crisis.
- May 16, 1975: Gov. Brown yields, issuing a proclamation for a special session.
- May 19, 1975 – September 11, 1975: Special session with negotiations and legislative hearings involving CMA and other healthcare providers, the insurance industry, and trial lawyers.
- September 11, 1975: The Legislature passes AB 1XX, a collection of statutes that is now known as the Malpractice Insurance Compensation Reform Act (MICRA).
- September 23, 1975: Gov. Brown signs the CMA-supported bill.
- 1975–1985: Lawsuits challenging the constitutionality of MICRA weave their way through the judicial system.
- October 15, 1985: The U.S. Supreme Court declines to review Lawrence Fein v. Permanente Medical Group, stating, “The appeal is dismissed for want of a substantial federal question.” Ten years after passage, the question of MICRA’s constitutionality is finally settled law. Medical liability premiums stabilize at significantly lower rates for California physicians than for physicians in states without strong MICRA reforms, and MICRA today remains the model for national medical liability tort reform.
- The proponent for the measure, Robert S. Pack, must collect signatures of 504,760 registered voters — the number equal to 5% of the total votes cast for governor in the 2010 gubernatorial election — in order to qualify it for the ballot. The proponent has 150 days to circulate petitions for the measure, meaning the signatures must be collected by March 24, 2014.
- The 2014 General Election will be Tuesday, November 4, 2014. For the initiative to qualify for the 2014 General Election Ballot, all signatures must be submitted by Thursday, June 26, 2014.
MICRA's Key Provisions:
- Click Here to Access a Handbook on California's Medical Injury Compensation Reform Act (MICRA)
- Limits on Non-economic Damages: Non-economic damages in a claim against a healthcare provider for medical negligence are limited to $250,000. Economic damages, such as lost earnings, medical care, and rehabilitation costs, are not limited by statute. California Civil Code Section 3333.2
- Evidence of Collateral Source Payments: A defendant in a medical liability action may introduce evidence of collateral source payments (such as from personal health insurance) as they relate to damages sought by the claimant. If a defendant introduces such evidence, the claimant may also introduce evidence of the cost of the premiums for such personal insurance. Civil Code Section 3333.1
- Limits on Attorney Contingency Fees: In an action against a healthcare provider for professional negligence, an attorney’s contingency fee is limited to 40% of the first $50,000 recovered; 33% of the next $50,000; 25% of the next $500,000, and 15% of any amount exceeding $600,000. California Business and Professions Code Section 6146
- Advance Notice of a Claim: To further the public policy of resolving meritorious claims outside of the court system, MICRA requires a claimant to give a 90-day notice of an intention to bring a suit for alleged professional negligence. If the notice is given within 90 days of the expiration of the statute of limitations, the statute is extended 90 days from the date of the notice. California Code of Civil Procedure Sections 364 and 365
- Statute of Limitations: In California, a claim for alleged medical negligence must be brought within one year from the discovery of an injury and its negligent cause, or within three years from injury. Code of Civil Procedure Section 340.5
- Periodic Payments of Future Damages: A healthcare professional may elect to pay a claimant’s future economic damages, if over $50,000, in periodic amounts. This avoids a claimant’s wasting of an award prior to actual need. Code of Civil Procedure Section 667.7
- Binding Arbitration of Disputes: Patients and their healthcare providers may agree that any future dispute may be resolved through binding arbitration. California statute requires specific language for such contracts and also provides that all such contracts be revocable within 30 days. Code of Civil Procedure Section
SDCMS-CMA Legislative and Judicial Wins Over the Past 10 Years:
- Ongoing: SDCMS and CMA work to ensure every recommended candidate for the California Legislature, whether Republican or Democrat, supports MICRA.
- September 23, 2013: The Second Appellate District Court, Division Four, issued its opinion, certified for publication, upholding the constitutionality of MICRA's non-economic damages cap. Fully consistent with the arguments made in the amicus brief filed by CMA, and joined by the AMA Litigation Center, the court rejected plaintiff's arguments that the cap violates the constitutional rights to jury trial and equal protection and the separation of powers doctrine. In this case where the plaintiff received $2,350,000 in pretrial settlements with other defendants before obtaining a jury verdict of $125,000 economic damages and $1,325,000 non-economic damages against the individual physician defendant, the court also held that the MICRA cap must be applied before applying settlement offsets, resulting in a reduction of the non-economic damages judgment against the individual physician defendant from $250,000 to $16,655. Click here for the court's opinion. A special thanks to the AMA Litigation Center for their support and joining us in our fight to defend MICRA in this important case!
- 2012: The trial lawyers introduce three bills attempting to “bite around the edges” of MICRA. CMA ensures one is amended to remove all offensive content (AB 1062) and kills the other two (SB 1528 and X).
- September 2012: In the last days of the legislative session, CMA — with short-term advocacy and long-term pro-MICRA relationships with legislators — crushes a move by trial lawyers to undermine MICRA (SB 1528).
- July 2012: CMA, together with the California Hospital Association, California Dental Association, and AMA, files an amicus curiae brief to support the constitutionality of the MICRA cap on non-economic damages in Hughes v. Pham.
- August 2011: CMA defends MICRA before the 5th Appellate District Court in Stinnett v. Tam, a case challenging the constitutionality of MICRA’s cap on noneconomic damages.
- September 2011: The court upholds the constitutionality of MICRA’s $250,000 noneconomic damages cap, a decision now citable as precedent to oppose plaintiffs’ efforts to introduce evidence with respect to MICRA’s rational basis.
- 2010: CMA defends the constitutionality of MICRA in court, filing an amicus brief and testifying before the appellate court in the case, which ultimately upholds the constitutionality of MICRA again.
- 2010: CMA works to ensure federal health reform efforts do not undermine MICRA.
- 2009: CMA fends off a trial lawyer attack on MICRA when the 5th District Court of Appeal unanimously upholds its constitutionality, thereby keeping physicians’ professional liability insurance premiums reasonable.
- 2003: CMA legal advocacy prevails in Palmer vs. Sharp Rees-Stealy Medical Group, defeating an attempt to define medical groups as not qualifying as “healthcare providers” under the law and, as such, as not being protected by MICRA.
- 2003: At the CMA House of Delegates, SDCMS leadership presents a check to CALPAC for $58,000 to protect MICRA, monies that are a direct result of SDCMS’ “Buck a Week” program to ensure the trial lawyers do not destroy MICRA and as a result raise our malpractice rates. SDCMS is recognized for having the highest CALPAC participation rate of any California county.
The Trial Lawyers' Ballot Initiative: Drug and Alcohol Testing of Doctors. Medical Negligence Lawsuits. Initiative Statute.
On October 24, 2013, Secretary of State Debra Bowen announced that the proponent of a new initiative may begin collecting petition signatures for his measure. The Attorney General prepares the legal title and summary that is required to appear on initiative petitions. When the official language is complete, the Attorney General forwards it to the proponent and to the Secretary of State, and the initiative may be circulated for signatures. The Secretary of State then provides calendar deadlines to the proponent and to county elections officials. The Attorney General's official title and summary for the measure is as follows:
DRUG AND ALCOHOL TESTING OF DOCTORS. MEDICAL NEGLIGENCE LAWSUITS. INITIATIVE STATUTE. Requires drug and alcohol testing of doctors and reporting of positive test to the California Medical Board. Requires Board to suspend doctor pending investigation of positive test and take disciplinary action if doctor was impaired while on duty. Requires doctors to report any other doctor suspected of drug or alcohol impairment or medical negligence. Requires health care practitioners to consult state prescription drug history database before prescribing certain controlled substances. Increases $250,000 cap on pain and suffering damages in medical negligence lawsuits to account for inflation. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local government: State and local government costs associated with higher net medical malpractice costs, likely at least in the low tens of millions of dollars annually, potentially ranging to over one hundred million dollars annually. Potential net state and local government costs associated with changes in the amount and types of health care services that, while highly uncertain, potentially range from minor to hundreds of millions of dollars annually. (13-0016.)
The Secretary of State's tracking number for this measure is 1606 and the Attorney General's tracking number is 13-0016.
The proponent for the measure, Robert S. Pack, must collect signatures of 504,760 registered voters — the number equal to five percent of the total votes cast for governor in the 2010 gubernatorial election — in order to qualify it for the ballot. The proponent has 150 days to circulate petitions for the measure, meaning the signatures must be collected by March 24, 2014.
Know the Arguments for and Against:
MICRA in the News:
MICRA Savings Posters for Your Office and Patients:
Studies in Support of MICRA:
Donate Now to Protect MICRA:
A large-scale MICRA fight will be an extremely costly undertaking. CMA is urging all physicians to consider a donation to CMA's political action committee (CALPAC), which for the last 38 years has served as the first line of defense for California’s historic physician protections.
California's trial attorneys have launched an all-out assault on California's historic tort reform law. If successful, the trial attorneys' efforts will cause malpractice rates to skyrocket, and recreate the same conditions that threatened to throw California’s healthcare system into crisis during the early 1970s.
Physicians will be victorious in this fight, but in order to do so, we need your help.
To Donate Online, Click Here
To Donate With a Check, Please Make Check Payable to CALPAC and Mail to:
1201 J Street, Ste 275
Sacramento, CA 95814-9813