In November 2020, Californians will have another chance to correct a tragic legislative error. TorkLaw urges all California citizens to support the Fairness for Injured Patients Act.
Why the Act is Necessary – MICRA
One of the United States’ most fundamental civil rights is the right to a jury trial when someone is injured or killed as a result of someone else’s negligence or wrongdoing. This right is guaranteed by the Seventh Amendment of the U.S. Constitution, part of the Bill of Rights.
Nevertheless, in 1975, political lobbyists influenced the California legislature to pass the Medical Injury Compensation Reform Act (MICRA). This law infringed on California citizens’ Seventh Amendment right by removing the right of jurors to determine fair compensation. Instead, it imposed a universal limit on the dollar amount jurors could award a patient injured through medical malpractice and negligence.
The constitutionality of this law has been challenged numerous times. Additionally, there has been virtually no public benefit to this law. Although lobbyists for the healthcare industry assured us it would lower the cost of healthcare services and increase their availability, exactly the opposite has happened. MICRA has increased malpractice costs, and reduced the number of doctors per capita.
Yet, inexplicably, the law still stands.
As a result, since 1975, the maximum compensation for non-economic costs that any victim can receive – whether they suffered lifelong disability, disfigurement, physical impairment, amputation, blindness, or other quality of life injuries – is $250,000.
1975 was 45 years ago. It was the year the Vietnam War ended. John Lennon was still alive, President Ford was president. The U.S. was not even 200 years old.
You could buy a brand-new car for $4,000.00.
You could buy a house for $40,000.00.
A gallon of gas was $0.57.
The average income was around $15,000.00 per year.
MICRA contains no provision to increase the compensation caps for inflation. Therefore, in today’s economy, $250,000 is worth only $50,768 as compared to 1975 – a depreciation of 80 percent.
Adjusted for inflation, the current $250,000 cap would be over $1 million today.
The Devastating Impact of MICRA
In 1992, two-year-old Steven Olsen tripped while walking in the woods with his family. In a freak accident, he fell face-first onto a sharp stick. It penetrated his mouth into the sinus cavity. He was taken to the Children’s Hospital of San Diego, where surgeons repaired the damage and sent little Steven home. They had taken cultures to check for infection, but apparently never bothered to check the results.
A few days later, Steven’s temperature spiked. His frantic parents rushed him to the hospital, where they asked for a brain scan to check for additional problems. Doctors refused, and diagnosed him with meningitis. Then Steven went into a coma.
Eventually, they realized that the stick had caused an abscess inside his skull, which had ruptured. Steven suffered blindness, brain damage and cerebral palsy as a result.
If medical staff had checked the results of the initial culture, it would have identified an infection, which would have necessitated a CAT scan — the test Steven’s parents had requested. Experts later testified that if he had been given that CAT scan, which cost all of $800, it would would have identified the abscess, which was treatable. Steven could have easily made a full recovery.
Because the medical team had botched poor Steven’s care so badly, the jury rightly awarded his family $7 million for non-economic damages.
However, after the jury left the courtroom, that award was reduced to $250,000 because of MICRA.
Because Steven was a child when he was injured, those non-economic damages are exactly what would have covered his needs through adulthood. Had he received the full amount the jury awarded, his parents could have invested it and retained enough to cover his lifetime needs. This is why the impact of MICRA has been so damaging. Those who have little or no economic losses suffer the most: children, seniors, the unemployed, stay-at-home parents or caregivers.
Steven is now 29, and that $250,000 is long gone. His mother, Kathy, who had quit her job to take care of her profoundly disabled son, died unexpectedly at the age of 59. His father, Scott, has now had to leave his job to care for Steven. Because Scott is no longer employed, the family relies on taxpayer-paid Medicare to pay for all of Steven’s care.
Scott Olsen wonders every day what will happen when he can no longer provide care to his son.
The Olsens are not alone. MICRA has left hundreds, perhaps thousands of families, reliant on taxpayer funds to pay for damages caused by medical negligence. Instead of being paid what they are owed by malpractice insurance companies making millions in annual profits, they struggle to survive and worry what will happen to their loved ones should anything happen to them.
Does this make any sense to you?
What You Can Do
A measure has been introduced to the California legislature officially titled, “Fairness for Injured Patients Act to Adjust California’s Maximum Compensation Cap of $250,000 Set by Politicians in 1975 on Wrongful Death and Quality of Life Damages That Has Never Been Updated.”
This law would not eliminate the compensation caps. And to be honest, we would like to see legislation that would eliminate them. However, that has been tried and failed – twice.
The Fairness for Injured Patients Act would at least be a step in the right direction. It would adjust them for inflation, and ensure those adjustments are made going forward. The initiative would also allow judgments in excess of these caps for actions leading to wrongful death or catastrophic injuries leading to permanent, disabling conditions.
You will likely see advertisements, bought and paid for by insurance lobbies, healthcare lobbies, and other corporate interests trying to convince you this law is not in your best interests.
Don’t be fooled.
We urge all Californians to get involved in a grass-roots movement to spread the truth about the Fairness for Injured Patients Act, and the need to pass it.
- Learn the facts about this act here.
- Read newspaper editorial boards that support adjusting MICRA caps.
- Read about how the vast majority of states do not have caps like California’s.
Or, perhaps you may hear people try to sway you from another direction, saying that this law doesn’t go far enough. We need more sweeping changes. And we agree. But until those changes come about, the Fairness for Injured Patients Act can help an awful lot of people keep their heads above water.
At TorkLaw, we know that a person’s life can be catastrophically changed in the blink of an eye. A car accident, motorcycle accident, product defect – even a slip and fall can result in lifelong injuries.
When negligent medical care leads to a debilitating condition, the medical costs can mean financial ruin. It can happen to you. It can happen to someone you love.
Spread the word with friends and family, and on social media. Ask everyone you know to support the Fairness for Injured Patients Act.