I rarely find myself smiling at anything Senator Darrell Steinberg says these days. But his recent comments to the Capitol Press Corps that he wants to see legislation to erode California’s Medical Injury Reform Act, or MICRA in Sacramento parlance, brought a big grin to my face.
To be sure, I’m a strong supporter of MICRA, which limits speculative “non-economic” damages in medical liability lawsuits. And I strongly oppose efforts by the trial lawyer lobby to erode MICRA so lawyers can file more frivolous lawsuits against doctors, hospitals, and other healthcare providers and generate big fees for themselves.
But the politics of a big MICRA fight in the legislature makes for some fun spectator sport for Republicans. A MICRA fight pits two long-time Democratic allies against one another. On the one hand, you have the trial lawyer lobby, a large contributor to Democratic candidates and causes. On the other, you have California’s oft-liberal-leaning medical provider community. Local health clinics, the doctor lobby, Planned Parenthood and the like. Basically everyone clamoring to implement Obamacare.
MICRA is a litmus test issue for both sides of the debate. As such, a vote on any bill to gut MICRA puts Democratic lawmakers in an untenable position: Side with the doctors, hospitals and others in the medical community and against the trial lawyers, and risk losing the lawyers’ loot. Side with the trial lawyers and against doctors, clinics and hospitals, and risk losing their campaign support and the great campaign mail photos that come with standing arm in arm with doctors and healthcare providers.
It’s a lose lose vote for any Democrat.
The trial lawyers are also promising a “Gut-MICRA” ballot initiative if the Legislature doesn’t act. I say have at it. There’s nothing like diverting tens of millions of dollars from key Democratic donors away from candidate campaigns and into a costly, divisive ballot measure campaign.
I’d like to see Democratic candidates a few million bucks poorer as they struggle to hang onto their coveted 2/3 supermajority in the 2014 election cycle.
As a MICRA fan, if I truly feared that there was a good chance that the Legislature would erode MICRA, I wouldn’t be celebrating the trial lawyers and Steinberg’s efforts. But I think a MICRA-gutting bill loses, and loses big.
That’s because MICRA is good policy. MICRA sets the rules for what damages are provided in cases where people are injured in a medical procedure. Under MICRA, injured patients are entitled to unlimited economic damages. This includes unlimited compensation for all past and future medical costs; unlimited compensation for past and future lost wages; and unlimited punitive damages.
And instead of lawyers taking their usual 40% of awards, MICRA has a sliding scale for paying attorneys’ fees so patients get more money, not their lawyers.
MICRA also caps speculative non-economic damages at $250,000. This reasonable limit provides a disincentive for lawyers to file meritless lawsuits while ensuring patients with legitimate claims are treated fairly.
Of course that $250,000 cap is what the fight is all about. For many years the lawyers have tried to lift or increase that cap. This year, the lawyer lobby says it wants to quadruple the non-economic damages cap to $1 million, thus putting more pressure on health care providers who are faced with a frivolous lawsuit to settle.
But while the lawyers would benefit, lifting the cap will have significant consequences for the rest of us. Higher lawsuit payouts mean higher medical liability costs for healthcare providers, and those costs are passed along to every patient and healthcare consumer in the state. In fact, according to some studies, a doubling of the cap would cost consumers and our healthcare system billions of dollars in higher costs each and every year.
At the end of the day, conservatives will vote against a change in MICRA to increase lawsuit payouts. But that doesn’t mean we can’t enjoy the show and the political fallout that will result if Senator Steinberg has his wish.