The Doctor’s Advocate | Third Quarter 2013
Consumer Attorneys of California Attack MICRA
It has become an annual tradition for the incoming president of the Consumer Attorneys of California (CAOC)—the association formerly known as the trial lawyers—to declare his or her intention to finally get a bill passed to repeal or dramatically increase the state's cap on noneconomic damages. (The cap is a provision of MICRA, the Medical Injury Compensation Reform Act of 1975.) This year is no exception, with the incoming president desperate to counter last year’s widespread criticism of CAOC as ineffectual and irrelevant after nearly all of its legislative agenda failed.
What makes this year different is the unusual level of effort by the plaintiff attorney group. CAOC has approached the governor and the leaders of both houses to try to negotiate a deal—without success, according to credible sources.
CAOC has hired three additional high-profile contract lobbyists in Sacramento in an attempt to share some of the leverage wielded by those lobbyists'; other, more influential clients. It has hired Chris Lehane, whom the New York Times called the “Master of the Political Dark Arts,” to consult on a campaign that has so far included some limited cable advertising, some billboards, a website, and a mail piece sent to select Sacramento addresses. The envelopes contained a mortuary toe tag along with an anti-MICRA message similar to the one on the website. So far, no legislation has been introduced. I expect them to try a "gut and amend" maneuver on a bill late in the legislative calendar—August or September—in order to exclude public participation in the process and shorten the time for MICRA's supporters to be able to respond.
The Doctors Company and its Sacramento lobbyists, coalition partners, and pro-reform allies are engaged in an all-out political and public relations response to CAOC's attack. We are meeting with legislators and staff, reinforcing our supporters, and explaining the benefits of MICRA to those not familiar with the law. A recent coalition letter reminded each member of the assembly and senate of the more than 700 organizations in the coalition supporting MICRA and of the importance of MICRA in preserving access to healthcare. Coalition staff has begun training grassroots advocates, including physicians and clinic administrators, to be ready for media inquiries. The coalition is also polling voters, contacting reporters, and working to place op-ed pieces with selected newspapers.
MICRA's continued success is due in large part to DOCPAC's contributors and to similar groups working to help elect pro-reform candidates to the legislature. Thank you to those of you who have donated to our political action committee in support of MICRA.
Minnesota Supreme Court Endorses Loss of Chance Doctrine
"Loss of chance" is legal jargon for the idea that if, as the result of negligence, a patient's likelihood of survival or recovery is diminished, the patient has lost something of value and should therefore be able to sue and be compensated for the loss.
Critics of the doctrine of loss of chance argue that measurement of the harm alleged in these cases is speculative and subjective. Another criticism is that loss of chance distorts the element of causation. In a negligence action, the plaintiff is required to show that, more likely than not, the defendant's negligence caused the injury. If both negligence and causation are proven, the plaintiff can recover damages to equal the costs of the injury. In a loss of chance case, the plaintiff does not have to show that the physician's negligence caused the illness or death. The reduced likelihood of survival or recovery is the injury rather than the disease or condition.
In Dickhoff v. Green, 2013 Minn. LEXIS 309 (Minn. May 31, 2013), the Minnesota Supreme Court explicitly recognized loss of chance as a cause of action. In doing so, the court declined to follow its own 1993 opinion in Fabio v. Bellomo (504 N.W.2d 758 at 762), in which it held, "We have never recognized loss of chance in the context of a medical malpractice action, and we decline to recognize it in this case."
In Dickhoff, the court claimed that the plaintiff in Fabio had failed to show enough evidence of causation to make out a loss of chance claim. The court held that reduction of a patient's chance of recovery or survival is a distinct injury and that modern science and statistical studies are reliable enough to discern when a physician's negligence reduces a patient's chance of recovery or survival. The court also rejected the appellate court's suggestion that the plaintiff must prove that physician error reduced the likelihood of the patient's survival from above 50 percent to below 50 percent.
Under the Dickhoff ruling, damages recoverable are equal to the percentage chance of survival or cure lost multiplied by the total amount of damages allowable for the death or injury.
Oklahoma Supreme Court Decisions Cast Doubt on Damages Cap, Joint and Several Liability
In Wall v. Marouk, 2013 OK 36, decided June 4, 2013, the Oklahoma Supreme Court threw out a provision of the Comprehensive Lawsuit Reform Act of 2009. The invalidated provision required the filing of an affidavit of merit in actions for professional negligence. Plaintiffs were required to get an expert to attest that a healthcare provider had been negligent before filing suit against the provider.
The court said the provision poses an unfair burden on plaintiffs by creating a barrier to access to the courts.
Immediately after Wall v. Marouk came out, the court released its opinion in Douglas v. Cox Retirement Properties, 2013 OK 37, in which it invalidated all of the Comprehensive Lawsuit Reform Act of 2009. In addition to the affidavit of merit, that act contained a $400,000 cap on noneconomic damages for all personal injury actions and limits on joint and several liability, among other provisions.
Legislation passed in 2011 lowered the cap on noneconomic damages to $350,000 and broadened its application, so Oklahoma still has an intact limit until the court invalidates it. The 2011 act also abolished joint and several liability. However, the decisions in Wall and Douglas raise serious doubt about whether either of these reforms would withstand a state supreme court challenge.