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Private Practice Insights: The MICRA Showdown

By Stuart A. Bussey, M.D., J.D., UAPD President

As the showdown for the latest cycle of tort reform heads for the California legislature and the ballot box in 2014, it’s time to review the arguments of both sides.  More importantly, it’s time to offer some possible solutions to the problem.  Trial attorneys want to protect patients against “negligent” physicians, while we physicians counter that we are trying to protect patients from indirectly bearing the costs of malpractice premiums.

California’s 1975 MICRA law, spearheaded by UAPD and the CMA, set a cap of $250,000 for a patient’s “noneconomic” damages (pain and suffering).  That’s good for keeping doctor’s malpractice premiums at a reasonable level.  There is no ceiling for economic losses of the patient.  That’s good for the patient who has legitimately had his livelihood impaired by provider negligence.  MICRA has kept malpractice premiums in check for years, but now trial attorneys are asking to raise the cap on noneconomic damages to $1.2 million or more.  We strongly support maintaining the $250,000 cap on non-economic damages.

As we all know defensive medicine and the overuse of tests has been one of the costliest consequences of malpractice litigation fears.  Even more so than the costs of the litigation and awards.  In fact, malpractice payouts of a million dollars or more comprise less than 8% of the 77,600 claims paid between 2004-2010 (Catastrophic Medical Malpractice Payouts in the US) There seems to be little correlation in the US between various state malpractice award caps and defensive medicine costs.  Therefore, tort reform efforts should go in a different direction—concentrating on protecting doctors in order to reduce defensive medicine costs—rather than increasing malpractice award caps.

Given the increasing emphasis on health care quality under the ACA, there could be some natural solutions to the tort reform problem.  “Safe harbors” could protect physicians if they document adherence to evidence based clinical guidelines.  Interestingly, by the end of this year 45 physician specialty societies will release lists of common tests and procedures that are overused.  Another safe harbor would provide immunity  for a health care provider who apologizes for a medical error—in Pennsylvania such a law is actually pending ratification.  A modification of this idea is a “disclosure and offer” program.  Providers voluntarily disclose adverse events to affected patients, and if necessary, make restitution to them to prevent a lawsuit.  Certifications of merit are currently required in many states.  The plaintiff must obtain a statement from a health care professional that has reviewed the record and affirmed that the case has merit.  Some states, including Florida, have established special funds for cases involving birth injuries.  Finally, specialized health courts, utilizing professional jurors with health care knowledge, is a longtime idea being increasingly discussed.