Guide to California Medical Malpractice Cap Changes
A California medical malpractice damages cap imposed nearly half a century ago prevented victims of medical malpractice from filing claims because the cost of litigation often exceeded the cap. A new law scheduled to take effect January 1, 2023, increases these limits, allowing victims and their families to recover fair and reasonable compensation for the first time in 47 years.
The Medical Injury Compensation Reform Act of 1975, also known as MICRA, imposed an unreasonable limit on damages for medical malpractice in California. Shockingly, the 1975 limits were not adjusted for inflation or updated until May 23, 2022, when Governor Gavin Newsom signed Assembly Bill 35 into law. The changes are effective as of January 1, 2023.
The experienced and compassionate California medical malpractice attorneys at Cutter Law can help injured California patients get the long-awaited justice they need and deserve.
What is the MICRA cap on non-economic damages in California?
A non-economic damages cap is a statutory limit on the amount of non-economic damages awardable in a civil trial. The MICRA cap is specific to medical malpractice cases. Non-economic damages are the subjective losses that cannot be measured in dollars and include the following:
- Pain
- Suffering
- Loss of consortium
- Disfigurement
- Loss of society
- Impairment
- Loss of enjoyment of life
- Mental anguish
In wrongful death cases, non-economic damages may also include damages related to the loss of the relationship, such as losses of the following:
- Guidance
- Support
- Comfort
- Instruction
- Companionship
The California MICRA cap was $250,000, regardless of the severity of the injury. It applied to personal injury and wrongful death cases. This cap was established in 1975 when $250,000 was the equivalent of more than $1.3 million in today’s dollars, according to Saving.org.
How does the MICRA cap work?
Damage award amounts are generally determined by juries, which are instructed to award amounts they deem reasonable. Juries typically are not informed of the damage caps. If a jury awards non-economic damages in excess of the cap, the judge reduces the award to match the cap.
Is the California MICRA cap constitutional?
Similar caps have been ruled unconstitutional by courts in several other states on the grounds that such caps deny injured victims the right to a jury trial on damages and violate the right to equal protection under the law. Californians who sustain similar injuries through other means do not face a cap on non-economic damages.
However, in numerous court challenges to the California MICRA cap, the courts have upheld the cap as constitutional.
The Supreme Court of California upheld the MICRA cap in Lopez v. Ledesma and ruled that it also applied to physician assistants as recently as February 24, 2022.
The Supreme Court of California upheld the MICRA cap in Rashidi v. Moser on December 15, 2014.
In a sharply divided 1985 decision, Fein v. Permanente Group, the Supreme Court of California ruled that the MICRA cap did not violate equal protection.
Inequitable Harm Caused by the California MICRA Cap
Victims with the most catastrophic injuries are hit the hardest by the California MICRA cap. According to a study by Health Affairs (Project Hope), the reductions in jury awards are seven times larger than in cases involving minor injuries, with the largest reductions being applied to damages for disfigurement and pain.
In a 2014 interview with CapRadio, attorney John R. Parker pointed out that the families of severely injured children and the elderly were also more impacted by the MICRA cap because of their ineligibility to claim lost wages. This essentially reduces the value of their cases to $250,000, regardless of the severity of their injuries.
Patients for Fairness has found that the MICRA cap also has a disparate impact on the following groups:
- Low-income patients who lack the resources to file suit
- People of color, who experience higher rates of medical errors
- Women, who are more likely to have lower income while facing increased potential for medical harm, especially reproductive harm
Changes to the California Medical Malpractice Damages Cap
Assembly Bill 35 modernizes the damages cap by amending California § 3333.2 as follows:
- Incrementally raises the cap to levels consistent with its value when MICRA was first implemented in 1975 and adds adjustments for inflation
- Differentiates between personal injury and wrongful death damages
- Adjusts the limit on when defendants can petition the court for periodic payments
- Authorizes separate causes of action with independent damage caps for three categories of health care providers
Personal Injury Damage Caps
Assembly Bill 35 raises the personal injury damage cap for medical malpractice to $350,000 in 2023 with annual increases of $40,000 until 2034, when the new cap will have reached $750,000. At that time, the cap will be adjusted for inflation by two percent annually.
Wrongful Death Damage Caps
The damages cap for medical malpractice that results in death will be raised to $500,000 in 2023. This amount will be increased annually by $50,000 until 2034, when it will have reached $1,000,000. This cap will also be adjusted by two percent annually for inflation.
Can these caps ever be exceeded?
The new law provides separate caps for the following categories of defendants:
- Health care providers
- Health care institutions
- Unaffiliated health care providers or institutions
The damage caps apply to each category regardless of the number of defendants per category. However, if you have a cause of action that applies to all three categories, this essentially triples the non-economic damages cap. All three categories may be pursued in personal injury and wrongful death cases.
How will I receive my award?
Medical malpractice awards may be paid in lump sums or periodic payments. MICRA allowed defendants to petition for periodic payments when the award amount was $50,000 or more. Assembly Bill 35 increases the minimum judgment before this can be requested to $250,000.
Why does California impose damage caps in medical malpractice cases?
There is no cap on wrongful death or personal injury damages in other types of cases. This raises questions about why damage caps are imposed in medical malpractice cases, which can involve catastrophic injuries. The rationale is that the caps protect the public interest by reducing medical malpractice premiums.
This theoretically reduces health care costs, increases public access to health care, and prevents frivolous lawsuits. However, these contentions are not consistent with research. A 2006 study by the Harvard School of Public Health and Brigham and Women’s Hospital found the following:
- Claims that did not result from an error accounted for only 10 percent of all claims
- Approximately 90 percent of claims filed involve treatment-related physical injuries
- Approximately 80 percent of claims filed involve severe injuries and significant disability
Additionally, despite claims that medical malpractice caps increase access to health care, Northwestern University researchers found that medical malpractice caps do not increase the number of physicians available to provide health care.
The Battle for Reform
A California jury awarded Scott Olsen $7 million in non-economic damages for the pain and suffering of his son, who became blind and disabled in 1992 because of medical malpractice. The court was forced to reduce these damages to $250,000 because of MICRA.
Although reform would come too late to help his son, Olsen and two other individuals filed for a ballot measure known as the Fairness for Injured Patients Act. This measure was scheduled to be decided by the voters on the November 2022 ballot, but in an unprecedented compromise between interest groups, an agreement that resulted in Assembly Bill 35 was reached.
“It’s high time that the California Legislature and all parties recognize that there should not be a fixed, one-size-fits-all cap on human suffering and that survivors of medical negligence, regardless of their income level, deserve legal representation and accountability,” Olsen said.
The Fairness for Injured Patients Act would have enacted the following reforms:
- Increase the non-economic damages cap to $1.2 million
- Remove the cap in cases of catastrophic injuries
- Require juries to be informed about the cap
- Increase the statute of limitations
A similar ballot measure in 2014 known as Proposition 46 was overwhelmingly defeated after a protracted, expensive political battle. Although Assembly Bill 35 reforms are less generous than the Fairness for Injured Patients Act, the compromise removed the uncertainty of reform and is a victory for medical malpractice victims.
If you or your loved one has been injured because of medical errors, you now have hope of holding your medical provider accountable and recovering damages that will go further in providing meaningful financial relief.
How can a California medical malpractice lawyer help me?
Medical malpractice damages are typically paid by insurance companies with extensive litigation experience. With the increased damage caps, these companies will likely fight even harder to avoid paying compensation. Defeating these companies requires the assistance of an experienced, resourceful California medical malpractice attorney.
The Duty of Care
To prevail in a medical malpractice case, you must prove that a health care provider owed you a duty of care and caused you to suffer an injury by violating the reasonable standard of care. A medical malpractice attorney can determine what the reasonable standard of care entails and find evidence that demonstrates your health care provider violated it.
Access to Resources
You will need access to your medical records, medical consultants, financial planners, economists, and professional expert witnesses. Hiring experts and accessing your records can involve overwhelming procedures and expenses that make these resources inaccessible to most people.
The California medical malpractice lawyers at Cutter Law have built an extensive network of experts and resources that enable us to access these resources on your behalf. This allows us to build a strong case and secure a generous settlement or successful verdict.
Additional Damages
In addition to non-economic damages, a medical malpractice attorney can also help you recover economic damages, which may include the following:
- Medical expenses
- Future medical expenses adjusted for inflation
- Lost wages
- Future lost wages
In wrongful death cases, economic damages also include funeral and burial expenses and the loss of income to the family. Punitive damages may be available in rare cases when you can show intentional misconduct or gross negligence precipitated the injuries.
Neither economic nor punitive damages have caps under MICRA, personal injury, or wrongful death laws.
When should I contact an attorney?
It is important to contact an attorney as soon as possible after you are injured. The statute of limitations for most cases of medical malpractice is just one year from the date you discovered or should reasonably have discovered the injury.
You may be able to extend the statute of limitations to three years if you can prove extenuating circumstances prevented you from discovering the injuries sooner. However, it is never safe to assume your case qualifies for such an exception.
If you miss the deadline, you forever lose the opportunity to hold the health care provider accountable and recover the compensation you need and deserve. By contacting an attorney as soon as possible, you ensure your case is filed on time.
How much does a California medical malpractice attorney cost?
Cutter Law operates on a contingency fee arrangement, which means you pay no initial fees. This ensures finances do not stand in the way of justice. We only charge fees after we successfully recover compensation on your behalf.
Assembly Bill 35 updates the limits on how much a medical malpractice attorney may charge in a contingency fee agreement as follows:
- 25 percent of the amount recovered if compensation is recovered from a settlement before a lawsuit is filed
- 33 percent of the amount recovered if the recovery occurs after a lawsuit is filed
An attorney may petition a court to increase these amounts in certain complex cases. These amounts are the state maximums. Our fees are individually determined during your free case evaluation.
Why should I trust the attorneys at Cutter Law to handle my California medical malpractice case?
We are award-winning attorneys with more than 130 years of collective experience. The compassionate and skilled representation we provide has resulted in hundreds of millions of dollars in recoveries for our clients and recognition from our peers, including the following:
- National Super Lawyers
- Northern California Super Lawyers
- Best of the Bar
- Presidential Award of Merit
- Advocate of the Year
The results we have achieved for our clients include the following:
$7.6 million
verdict for spinal cord injuries in a medical malpractice case
$2.4 million
for intentional medical misconduct
$240 million
in a nationwide defective medical device settlement
Medical malpractice victims in California and their families now have a chance to get justice. However, time is short.
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