In Charleston, W. Virginia the State Supreme Court will hear a case challenging a key portion of the state’s painstakingly crafted medical malpractice reform. An Eastern Panhandle couple is challenging the Legislature’s $500,000 cap on damages for pain and suffering in malpractice suits.
Previously reported, the Nevada medical malpractice cap is being challenged. In Georgia, a judge tossed the medical malpractice cap. This has occurred in other states and appears to be the beginning of a new trend. Could California be next?
Approximately twenty-two states have some form of medical malpractice cap and in surveying the landscape, with this latest trend, those state’s caps could be challenged as well.
As is well-known, in 1975 when MICRA was enacted, it helped what was described as an out of control jury award trend and upward spiraling insurance premiums for healthcare professionals. In many circles, it has been argued that MICRA is out-dated. What was $250,000 in 1975 is about $78,000 in today’s dollars. So, should MICRA change?
For the injured party, is $250,000 sufficient compensation…sometimes. Is it sufficient for relatively minor injuries…yes. Is it sufficient for major medical mistakes such as wrong limb amputation, medication errors with severe/permanent outcomes or other catastrophic injuries…probably not.
It is no secret that medical malpractice filings are down in California. Plaintiff attorneys are just not taking these cases. It could be argued that this has a three-prong affect.
1) The injured patient could find it exceedingly more difficult to retain competent representation due to the fact that that these cases are too expensive to prosecute for too little return.
2) Plaintiff attorneys are not taking medical malpractice cases, even those that potentially have full MICRA exposure as the cost to get to that settlement could equal or even exceed the recovery.
3) Lastly, the defense bar and insurance companies tend to have the “deeper pocket” and usually spend more prosecuting the case than the typical plaintiff who’s pockets tend to be nowhere as deep as the carriers. Is this the right thing to do? It depends who you ask.
As medical malpractice caps continue to be challenged throughout the country, it will be interesting to watch how this unfolds here in California.