Los Angeles Business Journal

Doctors Fear Unhealthy Malpractice Insurance

HEALTH CARE: Lawyers push to lift ‘pain and suffering’ award cap. By Howard Fine Monday, May 27, 2013

It’s doctors vs. lawyers.

Local trial attorneys and consumer advocates launched another attack this month on a state cap on medical malpractice damage awards, and local doctors and health clinics are fighting back.

Trial attorneys and Consumer Watchdog of Santa Monica announced earlier this month that they intend to place an initiative on the November 2014 California ballot to lift or eliminate the malpractice damage award cap. They say it discourages malpractice suits and allows doctors to get away with mistakes that harm patients.

“The cap makes it difficult for victims to find lawyers willing to take their cases,” said Bruce Brusavich, personal injury attorney with Agnew Brusavich in Torrance. “The real problem with this cap is that there is no incentive for the medical industry to improve its practices. There is mayhem going on and nobody cares.”

In response to the planned initiative, a statewide coalition of doctors, health clinics and hospitals – including many from the L.A. area – is defending the cap. They say that if the cap is lifted or eliminated, medical malpractice insurance rates would soar. And because they often can’t pass on the costs to consumers due to insurance contracts or because they treat indigent patients, they would have to limit their care load.

“If the cap were lifted, it would probably triple my malpractice insurance premium to nearly $25,000,” said Dr. Samuel Fink, an internal medicine practitioner in Tarzana and president of the Los Angeles County Medical Association, a coalition member. “It would be very difficult for us; ultimately, we would have less money to spend on treating patients.”

’70s reform

At issue is the state’s cap of $250,000 on so-called “pain and suffering” damage awards in medical malpractice cases. The cap was enacted as part of the 1975 Medical Injury and Compensation Act, better known as Micra; it has not been adjusted for inflation.

The cap applies only to noneconomic damages, commonly referred to as “pain and suffering” awards. There is no cap on compensation for cost of medical care or loss of wages. There is also no cap on punitive damages in cases of malicious intent.

Despite that, personal injury attorneys say the cap discourages them from taking on negligence cases involving children, elderly and other nonincome-producing patients where the lost wages are low or nonexistent. They also point out that the cap has stayed constant, while the cost to bring medical malpractice cases has soared.

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