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Groups Push for Ballot Initiative to Lift Cap on Medical Malpractice Lawsuit Payouts

LOS ANGELES DAILY JOURNAL

An effort to lift the state's 38-year cap on medical malpractice lawsuit payouts through a 2014 ballot initiative may be little more than an attempt to pressure the state Legislature to act on the matter, according to capitol sources and critics of the proposal. But the coalition behind an as-of-yet unwritten ballot initiative says it intends to follow through with the effort to redress the medical tort law through voter action.

As of Monday, groups including Consumer Watchdog, a Santa Monica-based consumer rights activism group, and the Consumer Attorneys of California, the state's main tort lawyer lobby, are still drafting the initiative, despite having already held a press conference on the proposed reforms. Both groups are longtime critics of the Medical Injury Compensation Reform Act, or MICRA, the 1975 law that caps pain and suffering payouts to victims of medical malpractice at $250,000.

MICRA's cap helps limit how much both plaintiffs and their attorneys can collect. Propoents of reform say the limit unfairly deprives victims of medical malpractice of just compensation. Opponents of reform say the cap decreases "frivolous cases" and note the law doesn't limit economic damages, including past and future wages, compensation for medical costs or punitive damages.

"I was shocked that there was no bill, and no language," said Kim Stone, president of the Civil Justice Association, a business litigant lobby that opposes MICRA reform. Several sources suggested that the push for a ballot initiative could be mainly for show, in order to influence legislators to address the issue.

Advocates kicked off the push for the pending ballot initiative with a press conference at the state capitol Thursday. The effort is also drawing support from Web entrepreneur Bob Pack, whose two children were killed by a driver under the influence of illegally obtained medication. According to Consumer Watchdog, in addition to MICRA reform, the initiative could also include reform of the state medical board and the creation of a database that would track drug prescription activity. The latter two issues are the subjext of current legislation, especially since the medical board's authority is up for legislative reauthorization.

But capitol sources said holding a press conference before the initiative has even been drafted is unusual. And though ballot initiatives sometimes mirror bills that initiative backers believe could die in the Legislature, currently there is no legislation regarding the MICRA cap.

Andrew Fenton, president of the California Chapter of the American College of Emergency Physicians, a member organization of the anti-MICRA reform group Californians Allied for Patient Protection, said he believed drug prescription monitoring and medical board reform were being discussed by the initiative backers solely to turn opinion against medical malpractitioners and promote the MICRA-reform component of the push.

"I do believe it's a ploy by the trial lawyers to just increase [medical malpractice damages]," he said. "What I think I'm seeing is the trial attorneys using as their front-men these consumer groups [to] blame drug overdose on doctors" and present the medical board as unable to hold doctors to account.

Consumer Watchdog said it's preparing a campaign for the initiative.

Consumer Attorneys of California president Brian Kabateck said reform would come from the public, if not lawmakers.

"For nearly 38 years, MICRA has capped non-economic damages for victims of medical negligence," said Kabateck, who noted the capy hasn't been adjusted for inflation. "It is fundamentally wrong that in California today a child's life is wroth no more than $250,000... If the Legislature does not act, we will support the efforts of victims to pursue a ballot initiative."

According to the group, polling by backers for the pending ballot initiative found two-thirds of voters supported eliminating the MICRA cap.

However, Fenton said opponents would respond to a ballot measure with ads stressing the potential for increased costs. Regarding a legislative approachc, Fenton said MICRA reform might be difficult for lawmakers to pursue given the implementation of the Patient Protection and Affordable Care Act.

"Upsteting the applecare by reforming MICRA now [would make that more difficult]," he said. "It would undoubtedly increase the amount of lawsuits."

paul_jones@dailyjournal.com