Dan Walters

March 25, 2014

Dan Walters: Old battle over medical-malpractice damages flares again

It’s been 39 years since Jerry Brown signed a bill setting a $250,000 cap on non-economic damages in medical malpractice cases, but the fight has resumed.

Dan Walters

Observations on California and its politics

The first serious kerfuffle to confront a newly inaugurated Gov. Jerry Brown in 1975 was a crisis – whether real or contrived is still being debated – over medical malpractice insurance.

Doctors and insurers complained that outrageously high damage awards, especially in obstetrics cases, were making insurance unaffordable and demanded relief.

There was even, in the spirit of the times, a sleep-in demonstration in Brown’s outer office by doctors’ wives, albeit with down sleeping bags and catered dinners.

By and by, after much maneuvering, the Legislature produced a bill to limit non-economic damages – pain and suffering, as they were called – to $250,000 in any one case.

The cap is still in place but, critics say, is worth only a tiny fraction of its original value due to inflation, making it very difficult to interest lawyers in pursuing cases for contingency fees.

It’s been nearly four decades of ceaseless political skirmishing between the cap’s defenders – medical-care providers and insurers, mostly – and its foes, primarily lawyers who handle personal-injury cases.

The latter have often enlisted the Legislature’s Democratic leaders in their cause, but those leaders were never able to deliver the cap repeal or modification lawyers wanted.

Senate President Pro Tem Darrell Steinberg has been trying to mediate a compromise number – $500,000 most recently – but failed.

Therefore, on Monday, Consumer Watchdog, an ally of the lawyer lobby, announced that it was submitting enough signatures to place a measure on the November ballot.

It would raise the cap by inflation, meaning it would immediately increase at least fourfold.

However, the measure encases the cap increase in lengthier “patient safety crisis” provisions perhaps more appealing to voters – requiring doctors to undergo drug testing and be more careful in prescribing drugs.

The out-front advocate for the measure is Robert Pack, a Bay Area businessman whose two children were killed by an addicted driver who had been overprescribed with drugs.

Few doubt, however, that if big money is spent to pass the measure, either directly or indirectly, it will come from the lawyers, thereby renewing their long war with the medical industry, which has already set aside an eye-popping $30-plus million for the campaign.

The situation is tinged with irony. Barry Keene, the legislator who carried the cap bill in 1975, said recently that he attempted to place an inflation escalator into the measure then, but that the lawyers didn’t want it. They thought, Keene said, that its absence would make a Brown veto of the bill more likely or make it easier to invalidate it in court.

However, Brown signed the bill and courts upheld the $250,000 cap. Now Brown is back in the governorship, and here we are 39 years later, refighting the battle.

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