The Doctor’s Advocate | Second Quarter 2014
Politically Speaking

MICRA Update

by Hal Dasinger, Vice President, Government Relations

Hal Dasinger

On March 24, 2014, proponents of a California ballot measure that would raise the cap on noneconomic damages to more than $1.1 million turned in 840,000 petition signatures to county election officials. Proponents hope to have enough valid signatures to place the measure on the November 2014 statewide ballot.

To qualify for the ballot, proponents need a number of valid signatures equal to 5 percent of the total votes cast for governor at the last gubernatorial election. That works out to 504,760 signatures.

County elections officials must count the signatures and compare a random sample of them to the signatures on voter registrations. Depending on how many signatures in the sample are valid, it may be necessary for the counties to attempt to verify each individual signature. I expect the measure to qualify, but it could be mid-May before elections officials give the final word about whether the attack on the Medical Injury Compensation Reform Act (MICRA) will be on the ballot in November.

The measure’s main provision would quadruple the noneconomic damages cap in California’s successful MICRA reforms. This single change would triple lawyers’ legal fees in healthcare lawsuits.

The measure contains two other provisions dealing with drug testing and prescription drug databases that have been included to obscure the increase to MICRA and mislead voters into voting for the measure. The main proponent of the proposition recently admitted as much to the Los Angeles Times: “The drug rules are in the initiative because they poll well, and the backers figure that’s the way to get the public to support the measure. ‘It’s the ultimate sweetener,’ says Jamie Court, the head of Consumer Watchdog.”1

The Doctors Company is a leader in the coalition to protect MICRA. Our diverse coalition has swelled to include business, labor, community clinics, hospitals, and local governments opposed to the ballot measure. Groups opposing the measure include the American Civil Liberties Union (ACLU), the American Federation of State, County, and Municipal Employees (AFSCME), Planned Parenthood Affiliates of California, and the California Chamber of Commerce.

The campaign against this ballot measure is Patients and Providers to Protect Access and Contain Health Care Costs. For more information, please visit the campaign website at www.stophigherhealthcarecosts.com.

To learn more about efforts to protect MICRA, connect with Californians Allied for Patient Protection at www.micra.org, on Twitter @MICRAworks, and on Facebook at bit.ly/FB-CAPP. To learn about DOCPAC or to download a contribution form, please visit www.thedoctors.com/DOCPAC.

Florida Court Invalidates Cap for Some Claims, Signals Danger for Others

The Florida Supreme Court finally issued its decision in Estate of McCall v. United States (No. SC11-1148, 2014), and, as expected, the court held that Florida’s cap on noneconomic damages violates that state’s constitutional guarantee of equal protection. The ruling is limited to wrongful death cases, but the wording of the opinion strongly suggests that the same court would vote to overturn the limit on noneconomic damages for other claims of medical liability as well.

The decision came nearly 18 months after oral argument. The delay may be due to the court’s inability to arrive at a majority opinion. Instead, two justices agreed to the principal decision with three more concurring in the result but not the analysis.

In this case, the patient died after giving birth under the care of U.S. Air Force healthcare. A lawsuit was filed in federal court. The judgment was reduced under Florida’s statute limiting noneconomic damages in medical liability actions, and the patient’s estate appealed the reduction. The federal appeals court found that the damages limitation did not offend the U.S. Constitution, but referred to the state supreme court the question of whether the limit violated the Florida Constitution.

In its opinion (available online at bit.ly/FLsc11-1148), the Florida court held:

We conclude that section 766.118 violates the Equal Protection Clause of the Florida Constitution under the rational basis test. The statutory cap on wrongful death noneconomic damages fails because it imposes unfair and illogical burdens on injured parties when an act of medical negligence gives rise to multiple claimants.… Further, the statutory cap on wrongful death noneconomic damages does not bear a rational relationship to the stated purpose that the cap is purported to address, the alleged medical malpractice insurance crisis in Florida.

The concurring opinion agreed that capping noneconomic damages regardless of the number of claimants created constitutional problems but disagreed with the principal authors’ inquiry into the legislative process that led to the enactment of the cap statute. Both groups of justices found insufficient rational basis for the legislature to enact the damage limitations.

It is this unwillingness to recognize a rational basis for the statute that may signal impending invalidation for the statute as it applies in cases other than wrongful death. Oral argument before the state supreme court in Miles v. Weingrad is scheduled for June 4, 2014. That case challenges the cap but does not involve wrongful death.

Federal Sustainable Growth Rate (SGR) and ICD-10 Delay Bill Passes

At the last minute before Medicare reimbursement cuts were scheduled to take effect, Congress passed a bill delaying both the SGR automatic reductions and the implementation of the controversial and complex ICD-10 medical coding standards. While the reprieve may be welcome, the bill did not include the Standard of Care Protection Act, previously part of the SGR reform legislation working its way through Congress.

For years, The Doctors Company has led a coalition in the fight to ensure that federal health laws and regulations are not construed to create new standards of care in medical liability lawsuits. Most recently, we worked extensively with the Senate Finance Committee, the House Energy and Commerce Committee, and the House Ways and Means Committee. We were successful in getting our language included in the bicameral compromise SGR reform package.

Unfortunately, House and Senate leadership were unable to agree on how to pay for roughly $150 billion in budget offsets for a permanent fix to the reimbursement system. The leadership of the House and Senate omitted the Standard of Care Protection Act from the last-minute patch because they believed they needed to keep all other provisions out in order to get it passed in time to meet the March 31 deadline. We will continue to press for enactment of the Standard of Care Protection Act at the federal and state levels.

 


Reference

  1. Hiltzik M. The battle between doctors and trial lawyers grows more infantile. Los Angeles Times. December 10, 2013. http://articles.latimes.com/2013/dec/10/business/la-fi-mh-infantile-20131210. Accessed April 2, 2014.

The Doctor’s Advocate is published by The Doctors Company to advise and inform its members about loss prevention and insurance issues.

The guidelines suggested in this newsletter are not rules, do not constitute legal advice, and do not ensure a successful outcome. They attempt to define principles of practice for providing appropriate care. The principles are not inclusive of all proper methods of care nor exclusive of other methods reasonably directed at obtaining the same results.

The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider in light of all circumstances prevailing in the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.

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Second Quarter 2014

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