In 1975 California enacted the Medical Injury Compensation Reform Act,
better known as MICRA. In a nut shell, MICRA sets a maximum award of $250,000
for pain and suffering in a lawsuit for medical negligence. That limit is for the entire
lawsuit, no matter how many plaintiffs are involved.
Not surprisingly, the main backers of the law are insurance companies. Their
argument was that health care costs were so high because doctor’s malpractice
insurance rates were high. It’s those nasty lawyers with their frivolous lawsuits and
runaway juries awarding huge amounts to plaintiffs who don’t deserve it.
It’s a tactic meant to distract attention away from those who created the
problem in the first place, the insurance companies themselves. The same tactic
was once commonly used by sexual predators who accused their victims of being
loose woman. “Don’t judge me, judge her.”
In the first 12 years after MICRA took effect, medical malpractice rates in
California were 8% higher than in states with no such law, and malpractice
insurance rates had increased 190%. (Medical Liability Monitor, 2001). While the
number of lawsuits has decreased and the overall amount of jury awards has
decreased, medical malpractice insurance rates and your health care costs have
skyrocketed. So too have insurance company profits.
Here is a real-life example of how MICRA works. (Names have been changed).
In 2015, Kelly Smith gave birth to her third child with husband Ray Smith. The
delivery was perfect, and the happy couple now had a 10-year-old, a one year old
and a newborn.
The following morning Kelly had a tubal ligation. The procedure started at
10:45 a.m. By noon Kelly was brain dead from massive internal bleeding. She died a
few days later. The lawsuit brought by Ray Smith on behalf of himself and his
children alleges negligence on the part of the surgeon and others.
The attorney representing the Smith family will get nothing if she does not
win. But she will shell out $50,000 in expenses before the case goes to trial, and she
will spend countless hours on behalf of her clients. If a case is truly frivolous, the
chance of success is small. Therefore, no attorney in her right mind will take that
risk, MICRA or no MICRA.
As for the Smith family’s emotional distress, if the lawsuit is successful the
jurors can award any amount they think is appropriate. Yet no matter how much
that is, the judge will have no choice but to cut it down to $250,000.
It gets worse. Kelly Smith was a stay-at-home mom. She could have worked,
but she chose to raise her children rather than hire someone else to do it. In the
eyes of the law, that has no value. Sure, Ray and his children can receive up to
$1,050,000 for the loss of Kelly’s household services: cooking, cleaning, laundry, etc.
(calculated at $14.37 per hour). But under MICRA, the emotional value of Kelly – as
mother to her children and wife to her husband – comes under the pain and
suffering category and is limited to $250,000.
# Me Too, anyone?
Please contact the Santa Barbara County Bar Association Lawyer Referral
Service to find a lawyer to help with your legal issue or to find out if you have a
viable legal issue – (805) -569-9400.
