San Francisco Medical Society Blog

MICRA Under Attack; Changing/Overturning MICRA Impedes Access to Health Care for Californians

Fri, 10 May 2013 10:51:22 GMT

California’s trial attorneys launched an all-out assault on California's historic tort reform law, which since 1975 has helped keep malpractice premiums in-check and ensured that California’s patients have access to affordable health care.

On May 2, 2013, a coalition—including the Consumer Attorneys of California and the trial lawyer-funded Consumer Watchdog group—announced intentions to seek to overturn California's landmark Medical Injury Compensation Reform Act (MICRA) through a ballot initiative. The group has until September to submit a proposed initiative to qualify for the November 2014 general election ballot.

If successful, the trial attorney’s efforts will cause malpractice rates to skyrocket, and recreate the same conditions that threatened to throw California’s health care system into crisis during the early 1970s. Prior to MICRA, out-of-control medical liability costs were forcing community clinics, health centers, physicians and other health care providers out of practice.

California’s MICRA has been a national success story with broad public support and has safeguarded both patients and our health care delivery system for decades. Risky reforms like the ones being threatened by the trial lawyers would severely impede our state’s ability to provide health care to the poorest and most vulnerable patients. At a time when we are trying to implement federal health care reform and provide access to health care to all Californians, this is the worst possible overreach at the worst possible time.

"The threat of a ballot measure is nothing more than a money grab by trial lawyers," says CMA President Paul R. Phinney, MD. "And one that that will come at the expense of higher health costs for all patients and decreased access for patients and clinics already struggling to keep their doors open. We cannot and will not let that happen."

Click here for more information on MICRA, and what you can do to help in the fight.

SFMS/CMA asks California Supreme Court to Depublish Case that Ignores MICRA's Definition of Professional Negligence

Fri, 10 May 2013 10:04:16 GMT

The California Medical Association (CMA), together with other amici, has asked the California Supreme Court to depublish an appellate court opinion that thwarts the long-standing definition of "professional negligence" in California's Medical Injury Compensation Reform Act (MICRA). The ruling, if allowed to stand as precedent for future cases, could be misused to undermine the goals of MICRA and adversely affect the entirety of the health care system and safety net in California.

In Flores vs. Presbyterian Intercommunity Hospital, a hospital inpatient sued for injuries she allegedly sustained from a fall when her hospital bed rail collapsed. The appeals court ruled that the negligence did not occur in the rendering of professional services and as such was subject to the two-year statute of limitations for ordinary negligence rather than the one-year statute of limitations for professional negligence.

CMA, California Dental Association, and California Hospital Association filed a joint amicus letter urging the Supreme Court to depublish the Court of Appeal’s opinion on the grounds that the opinion was wrongly decided, having been based on a poor factual record and consideration of less than all the pertinent authority.

CMA’s letter points out that under the long-standing definitions in MICRA, professional negligence includes any act or omission by a health care provider in the rendering of professional services for which the provider is licensed. Despite this clear definition and the fact that the provision and maintenance of safe hospital beds is a service for which hospitals are licensed, the Court of Appeal’s opinion failed to even address the pertinent licensing laws and regulations.

CMA and the other amici urged depublication because this wrongly decided opinion will not provide meaningful guidance in future cases and obscures the definition of what constitutes professional negligence under MICRA.

MICRA, California’s landmark professional liability reforms, have for nearly 40 years fairly compensated injured parties while protecting access to care for Californians.

Click here for more information on MICRA.

SFMS/CMA Prevents Last Minute Move To Scuttle MICRA; MICRA Is Preserved

Tue, 04 Sep 2012 11:56:18 GMT

In the last days of the 2012 legislative session, a shell bill (SB 1528) was gutted and amended in an attempt by trial lawyers to undermine California’s Medical Injury Compensation Reform Act (MICRA). SFMS/CMA rallied its grassroots advocacy network and was able to thwart this move and the bill is dead for this legislative season.

The bill would have artificially inflated the medical expense damages by valuing them on the basis of the retail price of medical services provided, not the actual expense to the injured party. Simply put, this would allow trial lawyers to value medical expenses based on usual and customary fees that physicians are rarely are paid, not the discounted contract rates they receive. The legislation would have scrapped longstanding principals of law that allows an injured person to recover as economic medical expense damages only amounts actually paid or incurred for medical care and services.

A similar assault was mounted last year in the form of a lawsuit (Howell v. Hamilton Meats) brought before the California Supreme Court. Fortunately, the court ruled that an injured person is not entitled to recover economic damages for past medical expenses based on a provider’s undiscounted bill if that sum that was never paid by or on behalf of the injured person.

SB 1528 would have artificially inflated economic medical expense damage awards and undermined MICRA's intent to prevent double recovery of these damages. This, in turn, would have increased medical malpractice premiums for physicians, many of whom would be forced to close shop thereby further limiting access to care for all Californians.

Had this bill passed, it would have undermined the state's landmark MICRA law, which was signed by Gov. Brown in 1975 (during his first term as governor) and limits pain and suffering damages in medical malpractice cases to $250,000.

Oppose SB 1528 -- Last Minute Legislation Threatening MICRA

Fri, 31 Aug 2012 10:46:08 GMT

Call Your Legislator to Oppose SB 1528

The trial attorneys are at it once again, trying to push through last minute legislation that would undermine the Medical Injury Compensation Reform Act of 1975 (MICRA) and increase medical malpractice insurance rates.

They have introduced SB 1528, a bill that would artificially inflating economic medical expense damage awards in managed care cases. This bill would change the way medical expense economic damages are measured, allowing damages to be awarded without regard to the amount actually paid.

This, in turn, would increase medical malpractice premiums for physicians, many of whom would be forced to close shop thereby further limiting access to care for all Californians.

SB 1528 is under consideration on the Assembly Floor on this last day of the legislative session.

CALL NOW to urge your legislators to VOTE NO on SB 1528.

Please call (877) 362-8455 to be connected to your legislator. You will be asked to enter your zip code and select your legislators. Give your name, specialty and let them know that you are their constituent.

Make this call today to help preserve MICRA and keep professional liability insurance costs affordable ensure health care access for all.

Talking Points

SB 1528 will:

Result in vastly inflated economic damage awards for expenses the plaintiff never ha
Erode the foundation of MICRA by artificially inflating medical expense damage awards
Line the pockets of trial attorneys at the expense of the medical community
Further harm California's already limited access to health care

Click here for a 1-page floor alert on SB 1528 produced by CMA's Government Relations.

SFMS/CMA is working to preserve MICRA. Click here for a copy of the letter CMA sent to the Chair of the Assembly Judiciary Committee Bob Wieckowski opposing SB 1528.

SFMS Spotlights Advocacy and Community Health Efforts at General Meeting

Tue, 13 Sep 2011 13:25:43 GMT

A wonderful time was had by all at the SFMS General Meeting on September 12 at the Golden Gate Yacht Club. With warm enthusiasm, SFMS President George Fouras, MD welcomed 60 residents and physicians—a quarter of which are first-time attendees!—to the annual event. Featured speaker CMA President James Hinsdale, MD delivered an informative presentation about CMA’s legislative efforts to preserve MICRA, prevent further reimbursement cuts from Medicare and Medi-Cal, and maintain the economic viability of physicians.

Event participants appreciated the chance to exchange new knowledge, gain insights into organized medicine, and to foster networking. Members expressed positive feedback and interest in becoming actively involved in future events, including the September 27th Career Fair, October 28th SFMS Night at the Symphony, and future mixers.

CMA Defends MICRA Before Appellate Court

Tue, 16 Aug 2011 15:21:40 GMT

California Medical Association, California Hospital Association, California Dental Association, and the American Medical Association will participate today in oral argument defending the constitutionality of MICRA.

The California Medical Association will argue in favor of maintaining California’s successful Medical Injury Compensation Reform Act (MICRA) before the 5^th Appellate District Court in Fresno today. The court will hear oral arguments in the case of Stinnett v. Tam, a case challenging the constitutionality of MICRA’s cap on non-economic damages. Counsel for amici California Medical Association-California Hospital Association-California Dental Association and the American Medical Association, will participate in the proceedings.

“MICRA is the national model for medical liability reform,” said Francisco Silva, CMA General Counsel. “The law was passed in response to a crisis to protect patients and ensure that physicians be able to practice medicine. The law has worked to keep medical liability rates low and has allowed doctors to remain in practice treating their patients.” The entire medical and health care community is supportive of MICRA and has stood firmly behind it throughout each legal challenge. Stinnet v. Tam is the latest of these challenges funded by trial lawyer groups from around the country. Under MICRA, injured patients are fairly compensated, medical liability rates are kept in check, and physicians and clinics can remain in practice treating patients. MICRA allows patients with justifiable medical negligence claims to receive the following forms of compensation:

Unlimited economic damages for past and future medical costs.
Unlimited damages for lost wages, lifetime earning potential or any other economic losses.
Unlimited punitive damages.
Up to $250,000 for non-economic damages, also called pain and suffering.
MICRA also includes a sliding pay scale to control attorney contingency fees, ensuring that more money goes to patients, not lawyers.

MICRA has proven effective in reducing and stabilizing medical liability insurance costs, which in turn has helped limit the rate of growth in health care costs and increased access to health care for all Californians. Not surprisingly, trial lawyers have long sought to overturn the limits on non-economic damages. Each attempt has been unsuccessful. That’s why in addition to challenging the law in the court, trial lawyers also will be seeking changes in the California State Legislature. It is expected their changes to MICRA will include quadrupling the non-economic damages cap to $1 million.

Trade Group Representing Personal Injury Lawyers Aims to Change Calfornia's Medical Injury Compensation Reforma Act (MICRA)

Fri, 21 Jan 2011 12:35:54 GMT

SFMS has gotten word that the CMA anticipates a challenge to MICRA during the upcoming legislative session. A debate about MICRA has already begun in Sacramento's Capitol Weekly.

Below is the latest Op Ed piece written by Roger Peeks and Ellen Rothman of Californians Allied for Patient Protection.

SFMS will work with CMA to challenge any new legislation proposing changes to MICRA not in the best interest of physicians and patients. You can expect that we will be asking you to call and write your legislators when the time comes to address this issue.

By Roger Peeks and Ellen Rothman

Consumer Attorneys of California, the trade group representing personal injury lawyers, would like to change California’s successful Medical Injury Compensation Reform Act (MICRA). They want to make it easier and more lucrative for lawyers to file lawsuits alleging medical negligence against doctors, hospitals, paramedics, nurses, community clinics and other healthcare providers.

Changing MICRA will limit patients’ access to healthcare, particularly care provided by community clinics which serve mostly communities of color, low-income Californians and rural patients. Also affected will be access to specialty care like OBGYNs, neurosurgeons and other specialists. Further, a change to MICRA also will increase health care costs by billions of dollars each year. These costs will be passed along to consumers, the state’s general fund, and taxpayers.

Between the two of us, we oversee multiple community health centers in L.A. County. Our physicians and staff each year see more than 175,000 patients, ranging in age from babies to the elderly. We provide medical, dental and mental health services, and have facilities in schools to serve thousands of students in the L.A. Unified and Compton School Districts. All our patients are low-income, most are from communities of color. We struggle daily to patch together funding to provide care and medication to our patients. Any additional costs our clinics incur due to changing MICRA will come directly from patient care.

We strongly support MICRA as do community clinics statewide. MICRA sets forth legal guidelines when a patient is injured in a medical procedure. MICRA ensures injured patients receive fair compensation for all economic losses, while limiting speculative, meritless lawsuits that drive up health care costs and reduce patient access to care. MICRA provides full recovery of all economic or out-of-pocket costs. Past and future medical bills are covered on an unlimited basis as are past and future lost wages. Patients can sue for unlimited punitive damages. MICRA even provides up to $250,000 in non-economic damages (pain and suffering). Finally, the law sets forth an attorneys’ fees sliding scale to ensure more money goes to patients, not lawyers. The reasonable $250,000 cap on non-economic damages is a fair way of limiting meritless lawsuits and keeping health care costs lower. But it’s a target of the personal injury lawyers because it restricts runaway payouts and the contingency fees they can collect. If the cap on non-economic damages is doubled (some rumors have the lawyers going for a quadrupling of the limit), it would add more than $9 billion annually to the cost of health care in California.

Increasing MICRA’s cap means:

Consumers will pay more for health insurance coverage. A recent study found that doubling MICRA’s cap will increase the cost of healthcare for the average family of four by approximately $1000 per year.

Doctors, hospitals, clinics and all health care providers will pay significantly more for medical liability coverage, and could be forced out of business. California already suffers from an acute shortage of physicians. OBGYNs, rural doctors, specialty doctors and clinics serving low-income patients are particularly vulnerable to spikes in liability costs.

Changing MICRA and the resulting increase in medical liability rates would make the state even more inhospitable and further limit patient access to care. Negative impacts will be felt disproportionally by low-income and rural Californians, and communities of color. These Californians are the least able to absorb increases to health insurance costs, and already have fewer health care options to begin with. They will be disproportionally and negatively impacted if MICRA is changed to allow more lawsuits.

Costs to the State General fund will increase by hundreds of millions annually – decreasing funding for health care, schools and other services. The cost to provide health care for current and retired employees covered through CalPERS will go up. Other state budget areas hit: Medi-Cal, Healthy Families, Department of Mental Health, Department of Corrections, Department of Developmental Services. The total estimated cost to the state ranges in the hundreds of millions. Local governments will be hit twice. Public hospitals and health facilities self-insure against claims. Any dollar spent defending against a meritless claim is a dollar not spent on care provided to California’s neediest residents. Local governments also provide health benefits to current and retired employees. Those costs also will go up.

There is no legitimate policy reason to change MICRA. California has a $28 billion dollar deficit. Unemployment is in the double digits. The economy has not recovered. There is no public outcry (except from personal injury lawyers) to change MICRA. That is because MICRA is working. And why groups including the Community Clinic Association of Los Angeles County and community clinics throughout California, along with the California Medical Association, California Hospital Association, California Dental Association, Planned Parenthood, California State Association of Counties, and more than 400 other groups support MICRA. We join these groups because it is far more important to preserve patient’s access to affordable, quality health care, than it is invite more lawsuits just so personal injury lawyers can have a bigger payout.

This article originally appeared in Capitol Weekly.