It’s doctors vs. lawyers.

Local trial attorneys and consumer advocates launched another attack this month on a state cap on medical malpractice damage awards, and local doctors and health clinics are fighting back.

Trial attorneys and Consumer Watchdog of Santa Monica announced earlier this month that they intend to place an initiative on the November 2014 California ballot to lift or eliminate the malpractice damage award cap. They say it discourages malpractice suits and allows doctors to get away with mistakes that harm patients.

“The cap makes it difficult for victims to find lawyers willing to take their cases,” said Bruce Brusavich, personal injury attorney with Agnew Brusavich in Torrance. “The real problem with this cap is that there is no incentive for the medical industry to improve its practices. There is mayhem going on and nobody cares.”

In response to the planned initiative, a statewide coalition of doctors, health clinics and hospitals – including many from the L.A. area – is defending the cap. They say that if the cap is lifted or eliminated, medical malpractice insurance rates would soar. And because they often can’t pass on the costs to consumers due to insurance contracts or because they treat indigent patients, they would have to limit their care load.

“If the cap were lifted, it would probably triple my malpractice insurance premium to nearly $25,000,” said Dr. Samuel Fink, an internal medicine practitioner in Tarzana and president of the Los Angeles County Medical Association, a coalition member. “It would be very difficult for us; ultimately, we would have less money to spend on treating patients.”

’70s reform

At issue is the state’s cap of $250,000 on so-called “pain and suffering” damage awards in medical malpractice cases. The cap was enacted as part of the 1975 Medical Injury and Compensation Act, better known as Micra; it has not been adjusted for inflation.

The cap applies only to noneconomic damages, commonly referred to as “pain and suffering” awards. There is no cap on compensation for cost of medical care or loss of wages. There is also no cap on punitive damages in cases of malicious intent.

Despite that, personal injury attorneys say the cap discourages them from taking on negligence cases involving children, elderly and other nonincome-producing patients where the lost wages are low or nonexistent. They also point out that the cap has stayed constant, while the cost to bring medical malpractice cases has soared.

“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.”

Another push

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.

Court said backers want the initiative ready for signature-gathering this fall.

“We want to give the Legislature one more shot at this during this session before having to resort to the initiative,” he said.

Initiative backers said that they have yet to decide on whether to raise the $250,000 medical malpractice cap or eliminate it entirely.

Other provisions being considered include: adding public members to the state Medical Board, which is now mostly doctors; boosting the authority of the state attorney general to investigate physicians; mandatory drug and alcohol testing for all doctors, and creation of an online database that tracks prescriptions to screen for doctors who overprescribe certain drugs.

But it’s the Micra cap reform that’s raising the loudest alarms in the medical community. They say it would encourage plaintiffs to file meritless lawsuits against physicians.

“At the core of this supposed ballot measure is the lawyers’ attempt to change Micra to make it more lucrative for trial lawyers to file meritless lawsuits and receive higher payouts,” said Lisa Maas, executive director of Californians Allied for Patient Protection, the newly formed coalition to defend Micra. “More lawsuits may enrich trial lawyers, but it will cost California’s health care consumers billions in higher health care costs and reduced access to health care services.”

Health care providers say the biggest impact will likely come to non-profit health care clinics and hospitals, especially those serving high numbers of indigent patients.

“Before Micra, our clinic almost went out of business as a result of exorbitant malpractice insurance rates,” said Jim Mangia, chief executive of St. John’s Well Child and Family Center, which operates 12 clinics in downtown and South Los Angeles. “If this passes and we have to pay several hundred thousand dollars more in malpractice insurance or to defend against lawsuits, then we can’t use that money for our patients. We would have to treat fewer people, which could mean having to shut down some of our clinics.”