In any medical malpractice case, lawyers for the victim understand they’ll face a very well funded team of attorneys on the other side. Malpractice cases are vigorously defended by insurance companies for doctors and hospitals. And the lawyers hired seem to have an unlimited budget to bring in experts from around the country, all to testify against the victim. In order to compete, a malpractice victim is forced to hire his or her own team of lawyers. Unfortunately, this takes money. Complicating matters in California is a tort reform law passed some years ago called MICRA (Medical Injury Compensation Reform Act). A provision in the law restricts what an attorney can charge a malpractice victim. While this may seem like a good idea at first, it ends up having unintended consequences. Malpractice victims in California have a very hard time finding any attorney to take their case. If they are lucky enough to find one, restrictions on what can be charged makes it impossible to retain more than one attorney. An attorney taking the case knows he or she will have to go it alone. This puts the victim at a significant disadvantage. Interestingly enough, the law only restricts one side’s ability to hire lawyers. Insurance companies are not limited in what they can pay in legal costs to defend a claim. MICRA only restricts what a victim can pay his attorney.
The law also takes away the jury’s right to decide what the case is worth. MICRA caps damages for pain and suffering or for the loss of a loved one at $250,000. Whatever a jury decides the case is really worth is reduced by the judge after the jury leaves the courtroom. And the law makes it illegal to advise the jury of this fact during the trial. It happens in secret after they leave. Granted, $250,000 is no paltry sum. However, keep in mind medical malpractice cases require enormous expenditures of money to bring in experts and secure doctors to testify. A typical case can easily cost $150,000 or more. And the law does not allow you to recover these costs, even if you win. With the law capping damages at $250,000, whatever is received is mostly eaten up in court costs and attorney fees. Very little is left for the victim.
To make matters worse, with the budget crisis in state governments, funds for disciplinary boards are being cut to the bone. Little or no money is available to go after bad doctors or unsafe hospitals. As a result, very few practitioners ever lose their license, even for repeated acts of malpractice. Without lawsuits to weed out bad doctors, they continue to practice, and create more malpractice victims.
There is a movement to pass laws like MICRA nationally. Texas passed a similar law several years ago. Others states are debating them as well. Some politicians argue they’re needed to stop frivolous lawsuits and drive down the cost of defensive medicine. Well, they do stop frivolous lawsuits. In fact, they stop all lawsuits. But what about defensive medicine? The practice of doctors ordering lots of unnecessary tests to protect themselves from lawsuits? Isn’t this a benefit from these new tort reform laws? Well, you’d think so. But the proof is just the opposite. Texas and California have some of the most expensive health care costs in the nation, despite tort reform laws making it practically impossible to file suit.
