Special Problems in California
In 1975, in the face of a "purported"
medical malpractice crisis , the California Legislature enacted MICRA,
the so-called "Medical Injury Compensation Reform Act of 1975. In
a quartet of decisions, the California Supreme Court by a slim majority
recognized the constitutionality of MICRA. Unfortunately, while the medical
malpractice "crisis" has long passed, (if ever there was one),
the harsh impact continues to penalize California's victims of malpractice
What is MICRA?
MICRA is made up, in part, by California Code
of Civil Procedure Section 667.7, Civil Code Sections 3333.1 and 3333.2,
and Business & Professions Code, Section 6146.
In American Bank & Trust Co. v. Community Hospital,
(1984) 36 Cal.3d 359, the court upheld a provision of the purported "Medical
Injury Compensation Reform Act of 1975”, (MICRA), which authorized the
periodic payment of damages in a medical malpractice action. Through this
opinion, the court required victims of medical negligence to accept delayed
payment of their judgments. [CCP § 667.7.]
In Barme v. Wood, (1984) 37 Cal.3d 174, the court
concluded that a provision of the act barring a "collateral source"
from obtaining reimbursement from a medical malpractice defendant was
also constitutional. [Civil Code § 3333.1(b).]
In Roa v. Lodi Medical Group, (1985) 37 Cal.3d
920, the court upheld the constitutionality of Business & Professions
Code § 6146 thereby prohibiting plaintiffs from paying the market rate
for legal representation.
In Fein v. Permanente Medical Group, (1985) 38
Cal.3d 137, the court upheld the provisions of Civil Code § 3333.2 which
deprived plaintiffs of compensation for proven non-economic damages greater
than $250,000, and divested them of the benefits of their own insurance
So what does this mean? First of all, it means
that California victims of medical malpractice must, under certain circumstances,
accept periodic payment of their damages over time, despite that a jury
may have awarded them a lump sum amount of damages.
Secondly, it means that errant doctors, (and their
insurance companies) do not have to pay for the medical bills incurred
by the plaintiff, as long as the plaintiff had insurance which covered
him/her. This is completely contrary to years and years of law throughout
the United States which held that a tortfeasor should not benefit simply
because the person s/he injures has the wherewithal to maintain an insurance
Third, it means that the court has capped the attorneys'
fees an attorney may earn. The impact of this provision is devastating
to the consumer. Numerous lawyers schooled in the art of trying medical
malpractice cases left to handle more lucrative personal injury cases
instead. The injured victim was left with counsel who did not emphasize
Lastly, a cap was placed on the amount the injured
victim could recover for emotional distress, pain and suffering , and other
non-economic damages to $250,000. Remarkably, this damage cap, or limitation,
has not gone up in the twenty-five years since MICRA was enacted by the
The entire pre-text for enactment of MICRA was,
as indicated above, an alleged "insurance crisis". One would
think that malpractice premium rates would have therefore gone down for
the doctors. Is this so? To answer this question, simply ask the doctor
the next time you see him/her. Undoubtedly you will hear that the rates
governing doctors have gone up, not down, in the last twenty-five years
So who has paid the price? Undoubtedly the victims.
Unfortunately, there is no victims' lobby which can make sense to the
legislature of this fiasco. However, there is a strong lobby of insurance
interests and doctors' interest.
Here are a few quotes from various dissents (opposing
opinions) of the California Supreme Court:
"Although the hospital claims that periodic
payments are fair to the malpractice victim because damages are paid
out as they are incurred, this assumes that a court, in structuring
payments for future damages, will be prescient enough to predict with
unerring accuracy the future condition of the plaintiff and the rate
of inflation for perhaps decades in the future. If the victim's condition
deteriorates so that medical treatment or custodial care costs are more
than the amount set forth in the schedule of payments, he is unable
to obtain the additional sums required because the payment schedule
is fixed. Even if his condition remains as predicted, it is impossible
to foresee in advance the rate at which future medical costs will increase.
For a number of years, such costs have been rising at a pace substantially
higher than the general inflation rate."
[Justice Mosk, Dissent 36 Cal.3d at 379.]
The legislative intent for passage of MICRA was
the desire to reduce premiums for medical insurance and by that means
to lower medical and hospital costs . As Justice Mosk noted in his Dissent
in Barme v. Wood, supra, 37 Cal.3d at 182:
"In the nine years since the adoption of
the so-called Medical Injury Compensation Reform Act of 1975, medical
and hospital costs have continued to rise astronomically. The only "reform"
has been to magnanimously bestow on health providers a generous insulation
for much of the responsibility for their more egregious negligence."
Despite the harsh impact on victims in California, The Scarlett Law Group is ready to assist you. Knowing the
twisted web the law is, The Scarlett Law Group can help.
If you or someone you know has been injured
as the result of medical malpractice or professional negligence,
you need the assistance of The Scarlett Law Group.
today to speak with a California Personal Injury Attorney.