California ballot measure would raise malpractice noneconomic damage caps

The cap has not been raised, even for inflation, since 1975.

When a doctor, nurse, medical specialist, therapist, hospital or other medical professional fails to practice medicine according to the prevailing standard of care and causes injury or death to a patient, the physician or other professional will be liable in money damages for medical malpractice.

Damages for medical negligence compensate for measurable economic, financial losses like past and future medical expenses and lost wages. In addition, noneconomic damages are available that do not correspond to a measurable dollar amount like that in a bill or set price, but that juries must evaluate and award such as for pain and suffering.

MICRA took effect in 1975

In 1975, Gov. Jerry Brown signed into law the Medical Injury Compensation Reform Act, called MICRA, which placed a $250,000 cap on noneconomic damages in a medical malpractice lawsuit. MICRA also limited the amount of contingency fees for lawyers in these suits.

Proposed 2020 ballot measure

On Sept. 26, 2019, a proposed 2020 ballot initiative was filed with the California Attorney General's Office that would make several significant changes to MICRA if voters approve it such as:

  • When the law takes effect, the $250,000 cap on noneconomic damages would be raised for inflation accruing since 1975, which would be more than $1 million. Thereafter, an annual cost-of-living increase would be calculated.
  • The limit amounts on recoverable legal fees would be similarly increased for inflation upon the law taking effect and annually after that.
  • The cap would be lifted for noneconomic damages for "catastrophic injuries," which would mean "death, permanent physical impairment, permanent disfigurement, permanent disability, or permanent loss of consortium." In catastrophic injury cases, the cap on legal fees would also not apply.
  • Jurors would be allowed to know about the cap, which is not the case under current law.
  • A plaintiff would be required to file a certificate of merit about the claim after consultation with a medical professional (or after trying to get at least three opinions) and if the court finds the claim meritless, the plaintiff's lawyer would be liable for the defendant's legal fees and expenses.
  • The cap would no longer be on so-called "noneconomic losses," but would be on "quality of life or survivor damages."
  • Quality of life damages would be for "physical impairment, disability, disfigurement, physical pain, mental suffering, inconvenience, emotional distress, grief, anxiety, humiliation, or decrease in ... life expectancy, and loss of consortium suffered by a loved one ..."
  • Survivor damages would be awarded to a loved one of a victim who died from professional negligence for "loss of love, companionship, comfort, care, fellowship, assistance, protection, affection, society, moral support, and the enjoyment of sexual relations ..."

Those who advocate for the victims of medical negligence will watch this proposal with interest and concern for the ability of deserving injured patients or their survivors to collect the money damages they deserve.

The lawyers at the San Diego law office of Chihak & Martel represent clients injured or who have lost loved ones through medical mistakes or hospital negligence across Southern California.