MICRA DENIES A FAIR RECOVERY TO INJURED PERSONS
PROMOTES SUBSTANDARD MEDICAL CARE
PROMOTES SUBSTANDARD MEDICAL CARE
It was in 1975 that Governor Jerry Brown signed into law the Medical Injury Compensation Reform Act ("MICRA"). That law placed a $250,000 limit on the recovery for damages that resulted from medical negligence-which are known as “pain and suffering damages”-that is, damages that would not be represented by monetary outlay or monetary loss. They are intangibles - thus the term “pain and suffering.”
That same limit - $250,000 - is in effect today even though the cost of living is well beyond what it was in 1975.
Because this limit did not provide for an increase based on the cost of living, the value of the recovery has decreased, in real dollars, substantially. That means that persons whose quality of life is substantially diminished are, especially, those who suffer severe injuries
If the injured or deceased patient was not employed before injury or death, and if that person had not provided household services, and if the injured patient will not need future services such as attendant care, special equipment or services, or has insurance to pay for medical care, recovery for the patient's injury will be limited to $250,000 no matter how badly the patient was injured. Below are some examples of how this limit functions.
In 2001, it was reported in a
Had her intestines been similarly damaged in an automobile accident, a settlement or judgment could well have been a million dollars or more, depending on whether the injuries resulted in a permanent colostomy.
Another recently reported case involved an older woman who had both legs amputated because of medical negligence. She received $175,000 for this injury. By comparison had the woman been struck in a pedestrian cross-walk by a negligent driver, depending on the amount of insurance available, the woman would probably have achieved a settlement anywhere from 5 to 10 times that sum.
Another example: Several years ago, before MICRA was enacted, a young man was brought to a hospital after an automobile accident. One of the vertebrae in his neck was visibly cracked in an imaging study, but a radiologist negligently failed to see the break. Because the problem was not detected, the young man's head and neck were not placed in a rigid brace and he was allowed to move his head. As a result of head movement the broken vertebra severed the young man's spinal cord in his neck and he was rendered quadriplegic. Had MICRA been in effect, for the loss of enjoyment in life caused by quadriplegia, the worst injury compatible with life, the young man would have been limited to $250,000 (less attorney fees).
this office is handling a case of medical negligence (not involving Kaiser)
which resulted in the death of a 42-year old father of 6 children. Four of the children range in age from 1 year
old to 17-years old; one child is 19 and another is 20. This man was a devoted father and
husband. For the loss of parenting that
he could have provided to his children, and for the loss of enjoyment and
affection that he provided to his spouse, the entire family is limited to an
award of $250,000. Because this man was
a field worker in the
Not only is the 1975 MICRA limit unfair to
injured patients, it also promotes carelessness in the delivery of medical
care. The best check for negligent
health care services are claims made by negligently injured patients. Government regulators are unable to police
the health care system effectively, except in the most minimal way. But health care providers in
In 1975 medical experts charged about $100 per hour to review medical care and render an opinion about whether the care was negligent. In 2002, medical experts charge between $400 and $600 per hour for review. A moderately complex medical malpractice case can easily cost $20,000 to prosecute. A complex case involving experts in several disciplines can cost between $50,000 and a $150,000 to prosecute.
The maximum fee that a lawyer can earn in a
medical negligence case based on a percentage of a recovery are set by
law. In a case where the gross recovery
is $250,000 and expenses are $30,000, the maximum fee an attorney may earn is
$67,160. It is not economically
rational for an attorney to risk thirty thousand dollars in expenses to earn
sixty-seven thousand dollars when the risks of losing the claim are so
high. As a consequence fewer and fewer
Another reason that the 1975 MICRA limit promotes carelessness in health care delivery is because the MICRA limit based on 1975 dollars is so low. The lives and well-being of the young, those who work in the home and the elderly have little economic value under the current limit because they are usually not wage earners. Compare a $250,000 damage award, even 10 such awards, against an annual cost of carotid artery screening that costs 30 to 40 million dollars. (See the web link called "Quality of Care = Access To Care").
If the statute in 1975 had provided that the MICRA limit would increase with inflation, in today's dollars the $250,000 limit would be about $850,000. If $250,000 was a fair maximum recovery in 1975, is $75,000 a fair limit today?
In this lawyer's experience, claimants frequently can’t believe their ears when their lawyer first informs them of this 27-year old limit. Supporters of this limit like it because they think it keeps "greedy" lawyers and plaintiffs from suing doctors and keeps insurance premiums from being outlandish. But when medical malpractice happens to the supporters of this unfair limit, they experience first hand the unfairness that this law exacts and they change their tune.
In this lawyer's opinion, the original MICRA
limit enacted in 1975 was fair - for 1975. Simply adjusting the limit for
inflation would be fair now, and having a reasonable limit would promote safer
heath care. If it costs very little to
make a terrible mistake and ruin a person’s life, then health care providers
will tend to be less careful because it costs money to be careful. It requires adequate nursing staff,
continuing training, careful controls, and good equipment. If there is no
penalty for being careless, then given the cost of being careful, hospitals
will tend to make choices, even without meaning to, that do not
ensure patient safety.