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 today.

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 policies.

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 policy.

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 medical malpractice.

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 legislature.

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 in California.

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.