The Doctor’s Advocate | Third Quarter 2012
Procedural Trick Presents Advocacy Challenge
The Doctors Company and its members shared in a significant victory last summer when the California Supreme Court decided Howell v. Hamilton Meats. The court rejected an attempt by the plaintiff in an automobile accident case to have her past medical damages measured by the full amount of the bills calculated by her various medical providers, because those providers and the plaintiff’s private health insurer had already agreed on a lower price for those services. Writing for the majority, Justice Werdegar wrote, “We hold no such recovery is allowed, for the simple reason that the injured plaintiff did not suffer any economic loss in that amount.” Howell v. Hamilton Meats & Provisions, 52 Cal. 4th 541, 548 (Cal. 2011).
Overturning this decision would mean a huge windfall for plaintiffs’ attorneys, both in higher judgments and in settlement talks, where the value of economic damages is often used as a basis for calculating noneconomic damages. Not surprisingly, the incoming president of the Consumer Attorneys of California identified overturning Howell as the association’s highest priority for 2012.
The bill introduced for this purpose, Senate Bill 1528, has the potential to negatively impact all civil defendants in cases with medical damages. It has attracted a long list of opponents, including The Doctors Company. However, defeating this bill involves more than the ordinary strategy of lobbying members, crafting arguments, and gathering data to support those arguments. The chief difficulty with this particular bill is that in its current form it doesn’t refer to the Howell case at all.
Initially, the bill would have directly overturned Howell. It would have made it statutory law that an injured person could recover medical damages “without regard to the amount actually paid” (SB 1528 as introduced). That language was removed, and the bill went through the senate with nothing but intent language about establishing a framework for compensating injured persons. The latest version refers to county lien rights, but there is still nothing about the measure of damages. In this form, the bill has moved through both houses without much debate or controversy. It has also skipped around the fiscal committees in both houses, a considerable advantage during lean budget times when any state cost can be enough to stall a bill.
This year’s legislative session is scheduled to end August 31, so by the time you read this, the outcome will have been determined. It is already clear that this bill will not take its final form until just prior to the end of the session, when the author will deploy a procedural maneuver known as the “gut and amend.”
At the end of August, in the rush of the session’s final days, when many bills are voted on with minimal scrutiny in order to beat the rigid adjournment deadline, the bill will come up for a vote with contents markedly different from the language that went through committee hearings. Almost certainly there will be an amendment explicitly reversing Howell. This kind of last-minute, significant, and substantive amendment excludes the public and interested parties from the deliberative process and limits the ability of opponents to object to the bill’s final contents.
As a partial safeguard against this kind of gamesmanship, the legislative rules require that the senate and assembly both vote on the same final language. We and the bill’s other opponents will be lobbying members far in advance of the final votes, which will take place during prolonged, chaotic floor sessions just prior to adjournment. To make it more challenging, the language overturning Howell may end up in another bill entirely. In that environment, we and our allies will be on hand to follow this shell game and alert legislators to what they are actually voting on.
In the weeks before those final votes, we will be working to persuade legislators to join us in opposing amendments that have yet to materialize. We will be working to convince state agencies to estimate the increased costs that will inevitably result from enacting language not currently in the bill. And we will continue to build our coalition of opponents to a bill that threatens to dramatically inflate medical damages in all injury cases—just not yet, in so many words.