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Tuesday, November 19, 2013

Medical malpractice cap in California

The cost of medical malpractice could rise if a ballot is approved
Non-economic damages indemnify for pain and suffering
By Joe Cronin

A proposed ballot measure in the state of California could potentially revise the state’s existing cap on medical malpractice damages, specifically those that are associated with non-economic damages.

The state has already approved a part of the measure to be put onto a ballot: that piece of the question addresses the issue of whether or not doctors should be required to undergo drug and or alcohol testing. But a separate ballot question that would be part of the same measure would raise the cap for the amount that can be claimed in a medical malpractice case specific for non-economic medical malpractice damages.

Non-economic damages

Non-economic medical malpractice damages are those defined as paying for damages for which there is no clear cost and for which there is no receipt. It would include the very real but subjective costs of pain and suffering and emotional distress caused by the injury. In the state of California there has been a cap on the amount that can be awarded for these damages since 1975. At that time the cap was established at $250,000. That amount may have been adequate at the time but for many malpractice victim’s advocates it is seen as woefully adequate for today’s standards, and the measure would raise the number to approximately $1.1 million dollars.

Although one would think that making this type of adjustment would be simple common sense, the question of whether to even put the question to the voters of the state of California has been quite a controversy. The California Medical Association is said to have spent upwards of $5 million dollars trying to fight the measure, and that’s been before it has even been clear whether the question will be put in front of the voters. Signatures are still being collected to determine whether this part of the medical malpractice question will make it onto the ballot.

Why?

One of the reasons that the question has been raised is that there has been no adjustment for inflation on the $250,000 damages cap since it was put in place almost forty years ago. Adjusted for inflation, the $250,000 cap is roughly equivalent to just $58,000 now, making many personal injury attorneys hesitant about pursuing litigation on behalf of their clients. The proposed adjustment is seen as a more fair compensation for those who have suffered as a result of the negligent actions of physicians. In order for the initiative to make it onto the ballot, 504,000 signatures are required. 

Making the inflationary adjustment is critically important, not only to enable victims of medical malpractice to receive just compensation for the damages that they suffer, but also to make sure that there is a way to hold physicians accountable for negligent acts. In the state of California, physicians are the only profession that have been able to escape liability for negligence – all other professionals are held fully accountable, without caps, for the damage for which they are determined to be responsible.


About the author: Joe Cronin is a medical malpractice attorney in Philadelphia