When you punish victims for someone else's negligence
If there's no limit to how much pain and suffering a person can endure, why is there a limit on damages awarded when the pain and suffering is not their fault?
The State of California places a cap on damages in medical malpractice claims. The Medical Injury Compensation Reform Act (“MICRA”) limits non-economic damages to a maximum of $250,000.
This was not some random, hastily-made decision. There's a history there.
Embodied in Cal. Civ. Code section 3333.2, the Act states that “In no action [for injury against a health care provider based on medical negligence] shall the amount of damages for non-economic losses exceed $250,000."
Non-economic damages are also typically called "general damages," and include monetary awards intended to compensate for pain and suffering, loss of enjoyment of life, and emotional harm. As a practical matter, general damages make up the bulk of an injured person's damages in medical malpractice cases.
Economic damages, sometimes referred to as "special damages," are quantifiable and specific monetary losses such as medical bills, lost wages or diminished future earning capacity, and are not affected by MICRA.
Damages worksheet to track expenses for your injury claim (medical treatment, property damage, lost wages, prescriptions)
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Passed in 1975, there's no one specific case that could be called the responsible case for why the cap was implemented.
The statute was designed to address what was then alleged by lobbies for doctors, hospitals and insurance companies to be a crisis in the market for medical malpractice insurance. It was claimed that skyrocketing premiums, purportedly spurred by huge damage awards, threatened the ability of doctors and hospitals to stay in business. Capping non-economic damages was seen as a mechanism for insurers to more adequately forecast and manage risk in the market for malpractice insurance.
Such caps became popular nationwide as a result of an extensive public relations campaign by trade groups and insurance companies, and today California is among 31 states who have some type of mechanism for capping damage awards in medical malpractice claims.
MICRA was controversial almost from its inception, and remains deeply unpopular with patient advocacy groups and trial lawyers who specialize in medical malpractice claims. Several court challenges early in its history involved heart-wrenching stories of patients who suffered life-altering injuries as a result of medical negligence and received huge general damage awards that were reduced to the $250,000 cap.
More recently, the law has faced a number of challenges to its constitutionality based on the argument that it violates the right to have a jury decide damages. This is an argument that has gained traction elsewhere, as eight states have now had their caps overturned by court decisions holding them unconstitutional.
Several recent California Supreme Court opinions, however, while somewhat limiting the impact of MICRA, have not undermined its basic constitutionality, suggesting that any modification or repeal of the law must come from the legislature.
The relatively low amount of the cap, which was not indexed to inflation in the original law and is among the lowest in the nation, has also become increasingly controversial.
Opponents qualified a measure on the statewide ballot in 2014 that sought to adjust the cap for inflation by raising it to $1.1 million. A massive multi-million dollar opposition campaign funded by doctors, hospitals and insurers that outspent proponents five to one defeated the measure at the polls.
Consumer advocacy and trial lawyers' groups continue to argue that the fundamental premise of the law is flawed, that doctors' insurance premiums have not been reduced, and that its primary effect is to deliver a windfall to insurance companies on the backs of patients injured through no fault of their own.
Having had little success in the courts, however, and with the state legislature seemingly unwilling to tackle even the obvious flaws in the law, it appears that victims of medical negligence in California must continue to deal with MICRA's limitation on the general damages they can recover.
Shar'ron Johnson-Wilkins says
So in essence what you are saying is that a doctor can misdiagnosed me and perform surgery to later find out that I had cancer and tumors, where as, I had to have another surgery two weeks later by a doctor that was qualified to read my cat scan; and the doctor who performed the first surgery didn’t. This doctor is not held accountable Beyond a $250,000 cap?
Betsy Konrad says
Thank you for the article. It’s cruel and in humane, this law. I almost died at the hands of doctors, suffer ramifications and no one will take my case because of this law.
I used to lobby and in DC for civil human rights. I even worked for President Clinton at the National Security Council.
Now I’m on the receiving end of needing someone to protect me.
Badly Injured in CA says
This law is not merely flawed, it is corrupt. To place a cap on one specific class of defendants is already patently ridiculous. Why not limit the general damages for amusement parks that operate defective unsafe rides that cause people serious injury or death?
To not include at minimum, a built-in adjustment for inflation is plainly corrupt. If $250K made sense to the legislature in 1975 dollars, that’s well ver a million in 2019 dollars. Meaning that the actual cap amount shrinks with each passing day! Tell me the legislature simply “overlooked” that fact in 1975, and that no one called it to their attention as the law was being debated! Corrupt as hell.
In my case, every subsequent doctor has described my injuries as horrific, and that the surgeon should not be permitted to even practice medicine. “Mutilated” “Aghast at what I am seeing” “the worst I have seen in 40 years of practice.” And yet it was extremely difficult to get a lawyer to even accept the case, because their cut by the time the insurance company gets done jerking them around will not be worth the effort.!
Our life’s are worth nothing says
My wife left the hospital with blocked intestion 17 hr later she collapsed from sepsis shock and respiratory failure she passed away 4 days later she was 62 retired do to her age and being retired her life was worth 0$ we have been together 44year I have never known another woman and never will my loss is worth 0 $ I’m speechless no I’m not I have a lot to say to our state assemblyman and our state senators this law has not been changed since 1975 the cap of 250,000 and has not changed in 45 years
Ian Pisarcik says
I’m so sorry this happened to you. While some damages can be recovered in the event of a loss, they can’t come close to making up for the loss.
You are not alone in believing that the damage caps should be raised or eliminated altogether.
Alessandro Machi says
A New Mexico Judge has ruled that the New Mexico Med Mal Cap of 600,000 dollars is endangering patients in New Mexico from receiving quality care. Why can’t the New Mexico Judge’s comments be used in California to at least get the Med Mal cap raised to something more reasonable than 250,000? Didn’t the New Mexico judge’s comments create a Med Mal precedent by stating a specific figure that the Judge considered too low as being a new Med Mal Benchmark?
Ian Pisarcik says
Thanks for the comment. The ruling in New Mexico can certainly be used to support a legislative change or a court ruling in California. However, the law in New Mexico isn’t binding on New Mexico courts.
Alessandro Machi says
The reason the ACLU and the news publishers were against Prop 46 in 2014 was the co mingling of three separate issues all into one. Instead of just a Med Mal increase to 1.1 million dollars, Prop 46 also required physicians to get randomly drug tested, and, for physicians to search a state wide drug database to see if their patient was doctor hopping to get a prescription filled.
Irrespective of whether all three concepts were worth supporting, combining them all into one gave all the decision makers the excuse necessary to just say no.
Ian Pisarcik says
Thanks for the comment, Allesandro.
My sister’s mentality disabled brother in law died by negligence, but because of the med mal cap she can’t find an attorney to take the case. Seems that because he never worked or had dependents, not worth attorneys time.
There should be a law for this underserved community. If this isn’t prejudice I don’t know what is. Despicable.
Melissa Gold says
Hello, Grace. I’m very sorry to hear of your and your sister’s loss.
Medical malpractice is a form of personal injury law. The basis for any personal injury claim is to make the plaintiff (the injured person) whole. In other words, to restore them to the financial condition they would be in if the negligent act that caused the injury or death hadn’t happened. Unfortunately, if this individual had no assets or earning capacity, he might not have suffered too many financial losses if there wasn’t a lot to lose. That doesn’t mean his life wasn’t worth anything… it just means that he might not have been in a financial situation that would be able to recover extensive damages in a lawsuit. Non-economic damages (which, as you saw, are capped at $250,000 in California) also might be difficult because, again, they’re based on who the person was prior to the injury and what they lost as a result. It’s very sad, I agree.
You can always continue to look for a lawyer who can help or who’s sympathetic to the facts of his case. If you would like to try to find another lawyer, please feel free to use the Enjuris law firm directory. Again, I am sorry for your family’s loss.
is this cap also for hospitals? or just private physicians?
Ian Pisarcik says
The cap applies to all “health care providers,” which includes both hospitals (health facilities) as well as private physicians. Here’s the relevant language from the statute:
“Health care provider” means any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code. “Health care provider” includes the legal representatives of a health care provider.”
Does this only apply to settlements or does it apply to trial by jury as well?
Ian Pisarcik says
The damages cap applies to both settlements and jury verdicts.
Wes Brenton says
Now I understand why I having a difficult time getting an attorney to take my case
I was given a dye thru a blocked IV port(even after I told them it was blocke) and for 36 seconds I screamed stop and finally when someone came to the CT machine my arm was so big it ripped the hospital gown since that day I have had numerous side affects including 3strokes and very difficult to function
I am now talking to the hospital claims people and getting a big run around
Ian Pisarcik says
Sorry this is happening to you. It might be time to talk to an attorney. You can find one using our free online directory.
Gilda Smith says
I went to Beverly Hospital for Cataract surgery and I left Blind, I was called by another optometrist thru my insurance and given another sugery on my Cornea and my Rednia just to be able to half way see. Now I’m very much disfigured in my face and cant see as I once did before the surgery. The worse part of it all is I have to keep having future surgeries
Or I’ll be in the dark for the rest of my life.
Eileen D. says
So what you are saying is the doctors have their *** covered!?!? I went to the ER, with vision issues, in one eye, and he blew me off, as do most male doctors do…..having a wedding shower for my daughter, and then the upcoming wedding….soooo he blamed it on stress! 6 months later, I woke up TOTALLY blind in my right eye!!! Per my vascular surgeon, of course later, told me had he EVEN looked in my eye, shouldda seen ALL the signs of a vascular problem! I am now PERMANTENTLY blind in that eye!!!! And NO RECOURSE for me?!?? I’ve been told by many lawyers, I’m NOT MAIMED ENOUGH!?!?!?