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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 San Francisco newspaper that during surgery a towel was left in a patient's abdomen. The towel caused an infection which destroyed a part of the patient's intestine and caused the patient to need another surgery in which she received a colostomy bag for elimination of her fecal waste. During the second surgery a tube was left in her intestine. She needed a third surgery to remove that tube. This patient will suffer, for the rest of her life, the indignity and humiliation of a colostomy bag because of a stupid mistake. Further, this patient, because of all the surgeries in her abdomen will likely suffer from bouts of bowel obstruction for the rest of her life. That means from time to time she will be hospitalized with life-threatening inability to eliminate waste. For all the harm this patient has suffered, she received $125,000 (less attorney fees) in the settlement of her claim.

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).

Currently 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 Central Valley, his wages were low and he was often paid in cash. It will be difficult to prove significant wage loss. Even if a recovery is obtained for this family, an award of $250,000 (less attorney fees) will never fairly compensate the family for their non-economic loss, and the economic award is very unlikely to fairly compensate the family for their economic loss.

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 California know that the MICRA limit frequently makes it difficult for injured patients to obtain legal representation. This difficulty exists because of the escalating costs of proving medial negligence and because statistics show that 9 out of 10 medical negligence cases tried to a jury are decided in favor of the health care provider.

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 attorneys in California will accept the representation of patients who have been injured by medical care.

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 1999, the California legislature tried to increase the MICRA limit to $500,000. Doctors and insurance companies launched a counterattack that prevented the measure from getting out of committee in the state Assembly.

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.