California Voters Push to Remove Cap on Non-Economic Damages

A few weeks ago, this blog published an article about the overturning of a non-economic damages cap by the Florida Supreme Court, one that prevented families of people who died through no fault of their own from collecting any more than half a million dollars in pain and suffering compensation. That post mentioned that several states have similar caps, but have yet to raise or repeal them. Among these states is California, which enacted its tort reform package, called the Medical Injury Compensation Reform Act (or MICRA), almost forty years ago.

This cap has kept victims of catastrophic malpractice from collecting more than $250,000 even in the most egregious of cases. In what remains a disheartening figure (indeed, one that gets more disheartening every year), MICRA has not changed since 1975, not even to keep up with inflation–$250,000 in 1975 is the equivalent of nearly $1.1 million in 2014. Civil justice blog thepoptort.com proposes that by groundlessly blaming lawyers and “litigation for a crisis that the [medical] industry itself had manufactured, the industry could obtain major changes in tort laws.” Obviously business owners, hospital administrators, insurance companies, and doctors were happy to accommodate such a law.

Every year residents of California struggle to make their voices heard in an effort to repeal MICRA. This year is no different; more than 800,000 signatories have urged the state legislature to accept the Troy and Alana Pack Patient Safety Act of 2014, which easily clears the state’s minimum of 504,000 signatures in order to be placed on the ballot in November. This initiative is named for “two young children who died in a car crash in 2003 […] after a driver who was overprescribed pain killers fell asleep at the wheel and lost control of her vehicle.”

The current bill has three purposes: it would “require physicians to undergo random drug testing [and] use the existing prescription drug database to curb doctor-shopping drug abusers,” and would also raise the MICRA cap. In an article in the Daily News of Los Angeles, the director of the consumer advocacy group, Consumer Watchdog argues that this is a “modest reform in the face of thousands of deaths due to negligence.” The only arguments to be taken up by the bill’s detractors are that it will drive doctors out of the state, raise premiums, and increase overall medical spending. However, these same arguments have repeatedly been found to be without merit in states like Ohio, Texas and others.

California is of course a unique state, but Florida’s cap, overturned just last month, allowed for twice the recovery amount currently available to Californians. It is also worth noting that the reason the Florida Supreme Court repealed this “tort reform” measure is due to its unconstitutionality, which is an argument that may find traction in California as well. The author of the majority opinion in Florida wrote persuasively that “[t]he statutory cap on non-economic damages fails because it imposes unfair and illogical burdens on injured parties when an act of medical negligence gives rise to multiple claimants.” Injured Californians should feel entitled to the same protection from negligent medical care as Floridians, and hopefully this ballot measure will prove more successful than previous attempts at overturning California’s MICRA law.