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The Travesty Continues – Update on California’s Cap of $250,000.00 on Non-Economic Damages

Summary: A law was passed in California in 1975 (Medical Injury Compensation Reform Act, also known as “MICRA”) which, among other things, limited the amount of money awarded for non-economic damages (pain, suffering, emotional distress, etc.) to $250,000 in medical malpractice cases. There was no clause included which adjusted the amount for inflation which means, at this point, that $250,000 is worth about $60,000 now.

I initially addressed this issue in Post #7 published in July of 2012 entitled “Here’s Why the California Cap on Non-economic Damages Is Archaic.” I discussed it again in October of 2012 in Post #14 entitled “Until the California Supreme Court Takes a Gander, the California Cap on Non-economic Damages Will Stay Firmly in Place.” Finally, I dealt with it in July of 2013 in Post #28 which was an addendum to Posts 7 and 14.  I would ask that you read those for background on the reasoning behind this cap and why the law is so wrong.

I am bringing this up simply because it is now July of 2018 and you may be wondering if something has happened since. Well, nothing helpful.

In Post #14, I had referred to the case of Gavello v. Millman, a case filed in March of 2009. That case had challenged the constitutionality of MICRA. However, the appellate court, in its unpublished opinion filed on July 9, 2013, found that the constitutionality of MICRA had already been determined in a prior case, Fein v. Permanente Medical Group, 38 Cal.3d 137 (1985).

I had also said that “it would appear to me that the only chance that the Gavello family has is, if the Court of Appeal rules against them (and I do not see how it cannot), the California Supreme Court will accept the case for review.” However, it does not appear that the Gavello family filed a petition for review with the Supreme Court. Therefore, there has been no change.

Of course, the best vehicle for change would be through the legislature. However, that did not work out either. In November of 2014, a ballot initiative, Proposition 46, would have modified the state’s cap on non-economic damages in medical malpractice cases. The current cap, set at $250,000.00 under MICRA, would have been indexed to inflation, raising the cap level to approximately $1.1 million. However, the voters rejected it. Of course, this was after opponents, primarily doctors and malpractice insurers, spent $60 million fighting it.

To put a human fact on this issue, an article written by David Lazarus for the Los Angeles Times on August 7, 2015, entitled “An Issue Potent Enough to Divide Brown and Nader: the Malpractice Damage Cap,” illustrated the unfairness of this cap by referring to the case of Annette Ramirez,

“A South Bay mother of two who underwent a hysterectomy in 2012 and ended up losing her arms and legs because of infection after her colon was perforated during surgery. She spent nearly two years in the hospital and will require full-time care for the rest of her life.

“Ramirez, (then) 51, sued her hospital and eight doctors for malpractice. Details of a subsequent settlement are confidential, but she told me that she received “the full $250,000.00” permitted by California’s law.

“It barely addresses what she’s been through.

“Imagine if you lost all your limbs and your livelihood,” Ramirez said. “Imagine if you lost two years of your kids’ lives. How can $250,000.00 ever be enough?”

(For a follow-up of where Ms. Ramirez is today, and what I think is a heart-warming story)

There are 21 states, as well as the District of Columbia, that do not have a cap on non-economic damages. They are Alabama, Arkansas, Arizona, Connecticut, Delaware,  Georgia, Illinois, Iowa, Kentucky, Maine, Minnesota, New Hampshire, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington and Wyoming. Again, the lowest cap is set at $250,000 for six states, of which California is one.

When you realize that this statute has now been law for 43 years, you look at the way other states have handled this issue, and you see how this is actually impacting individuals who are injured by the malpractice of health care professionals, this, quite simply, is a travesty of justice.

Published By: Patricia I. James, Esq.

**No portion of this Post is intended to constitute legal or medical advice. The views expressed are solely those of the author**