Initiative would raise cap on selected cases, extend deadline for medical negligence cases

By Evan Symon, CALIFORNIA GLOBE

July 28, 2020

Medical Negligence Compensation Cap Measure Qualifies for 2022 Ballot

On Monday, a ballot initiative set to remove a negligence compensation cap of $250,000 in medical malpractice cases became the first ballot initiative approved for the 2022 election from the office of state Attorney General Xavier Becerra.

Raising the $250,000 cap

The groups behind the measure, including Consumer Watchdog, had gotten certification of over 900,000 signatures last week. However, some time was needed for validity of 623,212 signatures, or 5% of the number of votes cast for Governor in 2018. The number of valid signatures broke through 685,534, the extra 10% of the vote total needed for random sampling verification, on Monday, thus confirming the new measure. Currently known as the Fairness for Injured Patients Act, the measure is set to be on the ballot on November 8, 2022.

Currently the medical negligence cap is set at $250,000, where it has remained unchanged since 1975 when then Governor Jerry Brown signed the Medical Injury Compensation Reform Act of 1975 (MICRA) into law. While there have been previous attempts to change the law, most notably in 2013 when an attempt was to raise the cap to over $1 millionfor wrongful death and negligence cases failed to get traction.

Should the measure be passed in November 2022, judges and juries would get to decide on individual cases if raising the cap is needed, with juries to be told about the cap before any relevant cases. Attorney’s fees would likewise be awarded by the judge, with deadlines for filing lawsuits would be also be extended under the measure. And to cut down on frivolous lawsuits, any lawsuits deemed meritless would have the attorney who filed pay the defendant’s expenses.

Proponents and opponents of the measure

Proponents of the measure have said the the $250,000 is not enough for many cases anymore, with inflation from 1975 making it only $50,768 adjusted for 45 years. Proponents also point out that the cap primarily effects minorities as they are more susceptible to medical errors, with the cap usually not being enough to pay surrounding costs.

Charles Johnson, the campaign Chairman of the ballot measure has said in previous statements that the inequality is costing lives. Johnson’s wife died in such a negligence case in Los Angeles following complications of a Cesarean section.

“COVID-19 has put the many racial disparities in our society front and center,” explained Johnson in a statement. “This ballot initiative is in large part about fixing a system that does not provide primarily black and brown families with a fair day in court when they face gross medical negligence.”

Opponents of the measure have said that that making the cap fluid and dependent on the case makes these cases susceptible to appeals, lengthening out processes and delaying payments for those who need it most.

“Look at how many cases are appealed nowadays,” Los Angeles attorney Judah Baines told the Globe. “You see so many cases of a high award in a case be whittled down in appeals. For cases where they aren’t settled and there’s a high amount given, you can bet it’s going back to court.”

“And this will open up the gates further here. If there is an award in the millions, hospitals are not going to stand by that, so it will just lead to more time and costs. And the victim may get less than they would have with the cap.”

“This could also raise malpractice insurance costs, which could raise hospital fees. There’s a lot of negatives to this that no one else is really bringing to light right now. But, as 2022 comes closer, we’re going to see it. The higher healthcare costs alone would turn away many voters.”

The measure, moved to 2022 to avoid the shadow of the COVID-19 pandemic, is expected to have a larger debate following he 2020 election in November.

Evan V. Symon is the Senior Editor for the California Globe. Prior to the Globe, he reported for the Pasadena Independent, the Cleveland Plain Dealer, and was head of the Personal Experiences section at Cracked. He can be reached at [email protected].