Micra

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By JESSICA TOLEDANO

Staff Reporter

What is the maximum amount that patients should be compensated to cover pain and suffering as a result of medical malpractice?

Current California law says $250,000, a figure that hasn’t changed since 1975.

But Democratic legislators are looking to increase that amount, and that has unleashed a fierce, high-stakes battle between two of the state’s most powerful groups doctors and lawyers. It represents one of the first health-related issues that Sacramento is likely to face this session and reflects a growing sentiment that the industry is in need of major reform.

On one side, doctors argue that lifting the pain-and-suffering cap would cost more than $6 billion annually and leave more people without insurance because of the resulting rise in premiums. Doctors who already pay anywhere from $15,000 to $50,000 in annual premiums could see their rates triple.

“If they raise the cap, premiums will go up and physicians will not be able to pay,” said Dr. Rex Greene, president of the Los Angeles County Medical Association. “Doctors will have to protect themselves by ordering more tests just in case something goes wrong. It will be a really ugly situation.”

Lawyers, meanwhile, argue that leaving the cap unchanged for nearly a quarter century is unfair to patients. They say $250,000 in 1975 dollars is only worth about $83,000 today.

“The bottom line is that if a doctor causes brain damage, turns you into a quadriplegic or kills your wife, the most people can get for their suffering is $250,000,” said Mark Robinson, president of the Consumer Attorneys of California. “It is ludicrous that this cap has not been brought up to at least the cost of living. We are not asking for it to be limitless. We just want the law to be fair to consumers.”

Under current law, a plaintiff can only get monetary damages for unpaid medical bills, loss of wages and future earning potential. The real money is in punitive damages, but Robinson said such damages are rarely awarded in malpractice cases because they require proving a very high standard of negligence. Hence, pain-and-suffering damages are all the more important as compensation for patients.

Joining the doctors in lobbying against any increase is the business community. Allan Zaremberg, president of the California Chamber of Commerce, says raising the cap would put unnecessary pressures on businesses that foot the bill for health insurance.

“Employers pay 50 percent of the cost of health care $35 billion annually,” said Zaremberg. “If this measure passes, costs will go up. When costs go up there is elasticity in the market. It will leave many employees paying a larger share of the premium and others left without health care.”

But consumer groups say changing the cap is the only way for consumers to protect themselves against doctor misconduct. California is one of the only states in the country that has not adjusted pain-and-suffering damages to the cost of living.

“We are only asking for what is fair. No other professional has their negligence capped,” said Jamie Court, executive director of Consumers for Quality Care. “The Legislature needs to do the right thing and index for inflation. I think it is going to happen this year, it is not an extreme position.”

Caught in the middle are state legislators and Gov. Gray Davis.

Foes of the measure say it is a payback for all of the large donations the attorneys gave to key Democrats and Davis, on the assumption that rules like the cap on malpractice damages would change.

“Pain and suffering goes to pay the attorneys’ contingency fee. Essentially, the (pain-and-suffering) cap is managed care for the trial attorneys,” said Dr. Jack Lewin, chief executive of the California Medical Association. “The attorneys want payback on their investment (in taking on medical malpractice cases).”

Robinson of the consumer attorneys group said lifting the cap to reflect 24 years of inflation would not result in that much more money for attorneys. The Medical Injury Compensation Reform Act, or MICRA, currently limits attorney fees to 25 percent of total awards in excess of $200,000, or 15 percent of awards above $600,000.

The measure, being drafted by Assembly Speaker Antonio Villaraigosa, D-Los Angeles, will most likely adjust the current punitive damages cap to be more consistent with the rate of inflation. But the issue has become so contentious that legislators are unwilling to reveal much about what the final version may entail.

“There will be a bill introduced by the speaker to raise the cap,” said Assemblyman Martin Gallegos, D-Baldwin Park, who is chairman of the Assembly Health Committee. “We have to look at this with an open mind and come to some kind of compromise. It has been 24 years. It is time for some reform, but it has to be reform that all sides can agree upon.”

But at this point, getting any consensus seems virtually impossible.

Davis spokesman Michael Bustamante would only say that the governor needs to review the issue before making a decision. During Davis’ bid for the statehouse, he was quoted as saying that he would not likely support raising the cap.

In 1997, Assemblywoman Sheila Kuehl, D-Santa Monica, introduced a bill to lift the cap to $700,000. That measure passed the Assembly Judiciary Committee but never reached the Assembly floor.