California's 22-year-old tort reform law-a measure that's been cited as model legislation in the push for national malpractice reform-is under attack, with some groups seeking repeal of its key tenets.
But changes to the state's Medical Injury Compensation Reform Act of 1975, or MICRA, will have to wait. A bill that would have lifted the cap on damages for pain and suffering won't come up for a vote until at least next year.
"We did not have the votes," said David Casey Jr., president of the Consumer Attorneys of California, a trial lawyers group that supported the bill.
The call to rewrite California's medical malpractice law has ignited a fiery debate and created strange bedfellows, with insurers and many in the medical community siding to preserve the cap on damages.
The bill to change MICRA, called AB250, was introduced earlier this year by Democrat Sheila Kuehl, speaker pro tem of the California State Assembly. Kuehl, a lawyer from Southern California, passed on a chance to call the bill for a vote this month.
The plan now is to bring the bill back in January, Casey said. Garnering more support for it is a top priority for his group.
MICRA caps noneconomic damages in malpractice cases at $250,000. Noneconomic damages are designed to compensate victims of malpractice for their pain and suffering. Kuehl's bill would have raised that cap to $700,000 and, in some egregious cases, removed it.
The California Medical Association has denounced Kuehl's effort.
"This is California, the most litigious place on the planet," said attorney Michael Mattoch, associate director of government relations for the state medical association. "This is where tort reform started, and this is where they'd like to put the stake in the heart of tort reform."
The American Medical Association has said that effective medical liability reform based on the MICRA model "is integral to health system reform," and the AMA is lobbying to have similar reforms enacted as part of the federal balanced-budget bill Congress is working on.
MICRA was enacted in the mid-1970s during a medical malpractice insurance crisis in California.
Another assembly bill, AB1220, would lift the $250,000 MICRA cap if doctors refuse, or delay, treatment for their economic gain. Deliberation on that bill, proposed by a San Francisco Democrat, also has been postponed until next year.
Mattoch said changing MICRA to increase liability will be a direct hit to patients because doctors will charge more to cover their increased malpractice premiums. Also, he said, public health facilities such as county hospitals and the University of California hospitals may have to cut patient care to shoulder the impact of increased judgments.
But supporters of change argue MICRA is outdated. It deprives people of fair compensation, said Kenneth Sigelman, M.D., an attorney who is medical malpractice chairman of the trial lawyers group. "MICRA has done nothing but (create) injustice for victims," Sigelman said.
Under Kuehl's bill, a cap on noneconomic damages wouldn't apply in cases in which a healthcare provider's alleged malpractice involved impairment by alcohol or illegal drugs, multiple disciplinary actions, sexual abuse of a patient, or the death or catastrophic injury of a child under 14.
Casey said there appears to be growing consensus among lawmakers to raise the cap for inflation but not lift it completely.
Lawyers favor changes to MICRA because bigger settlements will mean more money for them, said Donna Kaylor, legislative advocate for the California Healthcare Association, which represents hospitals, health systems and allied medical groups.
Although MICRA caps noneconomic losses, plaintiffs still can collect millions to cover lost wages and medical bills, she said. If exceptions are made to MICRA's cap, lawyers will try to use them in every malpractice case.