“Lawyers do not take medical malpractice cases involving a child or nonincome-producing spouse or the death of an elderly person,” said Brian Kabateck, partner in the L.A. law firm Kabateck Brown Kellner LLP and president of Consumer Attorneys of California. “California has decided those lives are worth only $250,000.”
Personal injury attorney Brusavich noted that most lawyers don’t take on these cases because their fees are also capped and the cases involve a considerable amount of upfront cost.
Under a law passed in the late 1980s, attorney fees in medical malpractice cases are capped on a sliding scale: 40 percent of the first $50,000 recovered, 33 percent of the next $50,000 and 25 percent of the next $500,000. So on a $250,000 damage award, the attorney fee would be limited to about $74,000.
“Paying for all the medical experts to testify and all the discovery can cost upwards of $100,000 for a single case,” Brusavich said. “When the total payout is only $250,000 and most of that is required to go to the victim – deservedly so – then the attorney loses money on the case.”
Doctors say these caps are essential to keep medical malpractice insurance affordable. Micra was enacted because medical malpractice insurance premiums had been skyrocketing.
“By 1975, physicians were at their wits’ end and some even called a strike,” said Dr. Howard Krauss, an ophthalmologist and eye surgeon with Pacific Eye & Ear Specialists in West Los Angeles. “That is what forced the enactment of Micra.”
Personal injury attorneys and consumer advocates have tried repeatedly to get the Legislature to reform the law. But each time, they’ve been stopped by the doctors lobby.
This time, the lawyers and their allies are trying to capitalize on controversy surrounding the California Medical Board and reports of lax discipline, especially in regards to overprescribing drugs that killed patients. The board’s discipline procedures have been the subject of recent media investigations and public hearings in Sacramento.
“When cases are not brought because of the Micra cap, there is a loss of deterrent,” said Jamie Court, president of Consumer Watchdog. “With the serious problems plaguing the state Medical Board, no one is policing the doctors. So we have dangerous physicians who are repeat offenders.”
Trial attorneys and consumer advocates also have the expected financial backing this time of Bob Pack, a high-tech entrepreneur in Danville whose children died when a driver swerved into them; that driver was found to have overdosed on prescription drugs.