Medical Malpractice Deal Could Replace Ballot Measure, Still Raise Monetary Awards

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Legislators and advocacy groups reach a deal to keep a medical malpractice measure off the ballot. - PHOTO BY ANNE WERNIKOFF FOR CALMATTERS
  • Photo by Anne Wernikoff for CalMatters
  • Legislators and advocacy groups reach a deal to keep a medical malpractice measure off the ballot.
A measure slated for California’s November ballot that sought to raise the cap on medical malpractice awards could be pulled, under an agreement announced today.

Instead, a bill will seek to raise the cap for a patient’s “non-economic damages,” or pain and suffering, although in a more incremental approach than the ballot measure would have. The bill would eliminate the need for a ballot measure.

Under the legislative deal announced today, starting Jan. 1, 2023, cases not involving a patient death will have a new limit of $350,000, with an increase over the next 10 years to $750,000 and a 2 percent annual adjustment for inflation after that. Meanwhile, cases involving a death will have an increased limit of $500,000 that will grow over the next 10 years to $1 million with a 2 percent annual increase thereafter.

The California Medical Association sent a letter to its members detailing the deal.

“The two sides of the ballot measure campaign have committed to putting patients first, to prioritizing the stability of affordable access to health care, and to set aside differences to do what’s right for all Californians,” the letter signed by Dr. Robert E. Wailes, president of the California Medical Association.

In the letter, Wailes said his organization is working with the Newsom administration and the Legislature to turn this new arrangement into law. “Under the agreement, the initiative will be withdrawn from the ballot and this watershed agreement will preclude another costly fight,”

The ballot measure known as the “Fairness for Injured Patients Act” was brought by families of injured patients and backed by the advocacy group Consumer Watchdog and trial lawyers. It sought to increase the compensation cap for non-economic damages to about $1.2 million. The current cap is set at $250,000 and has been since 1975.

The ballot measure would have allowed a judge to exceed that cap if a patient died or suffered a “catastrophic injury,” meaning an injury that left them permanently disabled or disfigured.

Nick Rowley, a trial attorney that helped author and contributed funding in support of the measure, said taking the legislative route through Assembly Bill 35 secures a cap increase for patients and their families. The legislation would allow for multiple caps — one for a medical institution and for a provider, for example. That means that in a case not involving a death, a patient could potentially hold multiple parties liable and receive more than $350,000, Rowley said.

“That’s a big change and that number is going to go up,” Rowley said.

Carmen Balber, executive director of Consumer Watchdog, which led the support of the measure, said the bill will fundamentally change patients’ access to justice when they are harmed by medical negligence. “The reason it was on the ballot is because families are locked out of the courtroom; they have no access to accountability because of how low this cap is. What this deal does is restore patient’s access to justice,” she said.

In opposition to the measure, a coalition of health providers, including the California Medical Association, argued that the measure would essentially have eliminated the cap and significantly increased the number of lawsuits filed in the state. They argued it would result in less resources for patient care and ultimately drive up the cost of health care.

The ballot measure — now turning into a bill — is the latest attempt to change the Medical Injury Compensation Reform Act signed by Gov. Jerry Brown in 1975. The law establishes that while Calilfornians who suffer from medical malpractice can recover as much as they need for medical bills and expenses, what they can receive for non-economic damages is limited to $250,000.

In 2014 a similar ballot measure failed.

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