PRACTICAL CONCERNS: As MICRA Threat Reemerges, Physicians Stand to Defend the Law

When trial lawyers announced earlier this year that they were working to scrap California’s Medical Injury Compensation Reform Act (MICRA), the California Medical Association (CMA) warned that the campaign would be riddled with lies, misdirection and below-the-belt shots designed to fool the public into thinking the trial lawyers’ efforts were anything more than an outright money grab.

Unfortunately, we didn’t know how right that warning would prove to be.

Since its passage, MICRA has been under near-constant attack from those who place the prospect of a higher payday above the overall health and well-being of California residents. While MICRA has repeatedly weathered the storm, the law is under siege once again. This time MICRA is facing the greatest threat yet, as trial lawyers aim to put more money in their own pockets at the expense of patients across the state.

Driven by greed and the promise of inflated attorney fees, California trial lawyers have renewed their fight to lift MICRA’s cap on speculative, non-economic damages, presenting ballot language that seeks to more than quadruple the maximum award for non-economic damages to roughly $1.1 million.

While trial lawyers have postured and threatened major action on MICRA before, this latest effort is made credible by the nearly $1 million the lawyers recently put into a ballot measure committee. The proposed ballot language, put forward by a trial lawyer front group inappropriately named Consumer Watchdog, was cleared by the Attorney General for MICRA opponents to begin collecting signatures to place the measure on the November 2014 ballot. Trial lawyers and their allies are bankrolling the proposed initiative.

With money on the table and signature gatherers on the street, it’s clear that MICRA opponents are serious about overturning the law in 2014.

If successful, these efforts would be devastating to California’s healthcare system. More meritless lawsuits will lead to reduced patient access to our healthcare professionals--and fewer options for affordable, quality healthcare--especially in rural and underserved communities. With federal healthcare reform expanding coverage for millions of additional patients, California is already struggling to provide access to care for the neediest and most vulnerable patients. If this ballot initiative is successful, it will only make the situation worse: even longer lines in emergency rooms, extended waits for appointments with specialists and reduced access to women’s services. This measure will make healthcare professionals, including doctors, nurses and other providers, less accessible--not more accountable, as claimed by the trial lawyers.

A broad-based coalition of nearly 1,000 groups and organizations led by CMA--including doctors, nurses, dentists, hospitals, Planned Parenthood and community health centers and clinics, among others--has emerged to protect access to care across the state.

While the latest fight over MICRA has now taken its first steps toward the ballot box, CMA and its allies have already notched several key victories in this fight, and remain committed to defeating the initiative push in its entirety.

The central intent of the proposed ballot language is nothing more than a thinly veiled money grab by California’s trial attorneys, who stand to make hundreds of thousands of additional dollars on every malpractice case should the cap be changed. However since most voters would not support that provision, the ballot language also calls for physician drug testing and a bolstering of the state’s Controlled Substance Utilization Review and Evaluation System (CURES).

Currently, MICRA protects patients involved in medical liability lawsuits by allowing unlimited economic compensation for any and all economic or out-of-pocket costs, including past and future lost income and earning capacity, all necessary medical care, as well as unlimited punitive damages. Under MICRA, patients can also receive up to $250,000 for non-economic pain and suffering damages. This allows legitimate medical liability cases to move forward while discouraging lawyers from filing frivolous suits. MICRA also limits how much lawyers can take as payment, ensuring more money goes to patients, not lawyers.

The trial lawyers’ measure would not only nearly quadruple MICRA’s non-economic damages cap from $250,000 to $1.1 million--it would also triple the legal fees that lawyers receive.

While the trial lawyers get rich, everyone else pays. More lawsuits mean higher healthcare costs for everyone. An analysis by California’s former independent legislative analyst found that this measure would increase healthcare costs for consumers and taxpayers in California by nearly $10 billion annually.

This fall, MICRA opponents also attacked the Capitol, where members of the Legislature were returning from their summer recess and preparing to begin the final legislative push for the 2013 session.

Knowing that legislation attempting to scrap MICRA would never survive the vetting process typical of a full session, opponents sought to find an author willing to use the so-called “gut-and-amend” action to avoid public scrutiny provided through the regular legislative process to push an anti-MICRA bill through the Legislature in the final days, or even hours, before the Assembly and Senate adjourned for the year.

In its effort to locate an author, as well as drum up opposition to MICRA, Consumer Watchdog began conducting daily mail drops featuring their “38 is too late” campaign to legislative offices. The canvassing project targeted physicians as being unsympathetic to their patients’ needs, and portrayed MICRA as a barrier to victims seeking restitution for medical malpractice. Nowhere in Consumer Watchdog’s literature did it mention that medical malpractice victims are entitled to unlimited economic damages--such as lost wages, earning capacity and medical expenses--under California law. Nor did it mention that lawyers would stand to make more money should MICRA be overturned.

To combat this effort, CMA and a host of allies--including labor groups, public safety entities, allied healthcare professionals and municipal interests--inundated members of the Legislature with facts supporting MICRA’s efficacy, warning that altering the cap would adversely impact local governments, community clinics and insurance premiums for all Californians.

In the end, MICRA’s supporters emerged victorious, as trial attorneys were unsuccessful in getting anti-MICRA legislation introduced during the most recent session.

Shortly after being defeated in the state Capitol, MICRA opponents decided it was time to start playing dirty.

In late September, Consumer Watchdog distributed a mail piece featuring the names of hundreds of California physicians who it claims are afraid to “pee in a cup,” while also personally targeting CMA Past President Dr. Paul Phinney, asking what he had to hide by opposing the trial attorneys’ greed-fueled initiative to gut MICRA. Oddly enough, the trial attorneys’ mailer makes no mention of the proposed initiative’s attempt to nearly quadruple MICRA’s cap on non-economic damages and exponentially increase their fees, and sticks to the more voter-friendly provisions regarding substance abuse in the workplace.

The attack was a brazen one, illustrating that the state’s trial lawyers and their puppet organization, Consumer Watchdog, will stop at nothing to line their pockets through the inflated attorney fees that would be generated from MICRA’s cap being lifted.

These cheap shots continued, however, when representatives from Consumer Watchdog crashed CMA’s annual House of Delegates conference in Anaheim, hosting a press conference outside of the conference center before circling the streets with a video truck broadcasting the message that “doctors should pee in a cup.”

While these attacks may sting for those who are personally targeted, they also illustrate one fact--MICRA opponents are desperate.

In the months since trial lawyers launched their latest assault against MICRA, California physicians and other allies have rallied to MICRA’s defense at a near-historic rate. Funds are being raised at record numbers, and physician engagement with the issue grows every day. As a result, Consumer Watchdog and other MICRA opponents are stooping to new lows in an attempt to intimidate those who have come to MICRA’s defense.

These deceitful attacks by MICRA opponents will continue, and will get worse as the November 2014 election cycle ramps up. Physicians, however, must continue to advocate for MICRA and ensure that our patients and practices are not jeopardized by the greed of those who would like to see MICRA fall.

Rest assured, CMA will win this fight, but will need all physicians in order to do so. To find out how you can help, visit www.cmanet.org/micra  today.

Dr. Thorp, a Paradise internist, is president of CMA.