The Doctor’s Advocate | Fourth Quarter 2012
Trial Lawyers Suffer Stunning Defeat
Last quarter this column described the difficulties faced by opponents of California Senate Bill 1528. Those opponents included The Doctors Company, the California Medical Association, the MICRA coalition, the Civil Justice Association of California, Allstate, State Farm, and a number of other groups whose members would have been harmed by SB 1528. In spite of the political and procedural obstacles confronting opponents of the bill, we prevailed in a vote so lopsided that it surprised capitol insiders.
The bill sought to dramatically increase medical damages awarded in lawsuits beyond the actual damages suffered by the plaintiff. SB 1528 was introduced by the President pro Tempore of the California State Senate at the request of the Consumer Attorneys of California, the state trial lawyer association. Repealing or amending the Medical Injury Compensation Reform Act (MICRA), California’s landmark medical liability reform statute that includes a cap on noneconomic damages, is a perennial goal for this group. Having consistently failed to change MICRA directly, this year the trial lawyers attempted to increase settlements and judgments—and their contingency fees—by legislating higher economic damages in the form of medical costs that would be measured “without regard to the amount actually paid” (SB 1528 as introduced).
The legislative fight took place about as I predicted in the last issue of The Doctor’s Advocate. The bill went through both houses as an empty shell without substantive content, skipping fiscal committees and being voted out of policy committees as a work in progress. (Both houses have rules against “spot bills” that move through the process without meaningful discussion, but the senate leader was able to overcome these.)
Along the way, the trial lawyers attempted to open separate channels to bargain with individual opponents. One proposed deal would have had the auto insurers agree to drop their opposition in exchange for trial lawyer support for a bill authorizing cheaper, after-market parts for use in accident repairs. There was also some talk of exempting medical liability litigation in order to remove opposition from physicians and hospitals. None of these side deals succeeded, and the coalition against the bill remained intact.
Two days before the end of session, the bill was amended into its final form and moved to the assembly floor amid the blizzard of bills that marks the end of every legislative session. The Doctors Company and the other members of the coalition contacted every member of the assembly, explaining how the bill would affect physicians and other health care providers, clinics, hospitals, and businesses in that member’s home district. On the last day of session, the bill was taken up for debate but received only 13 of 41 votes needed for passage. The bill was “on call” all day, meaning that the author and supporters had time to try to persuade legislators to add their “aye” votes, but, in the end, the bill went down to resounding defeat.
The vote was so one-sided that a leading legal newspaper, the Recorder, published an article questioning the ability of the Consumer Attorneys of California to be an effective advocate. The president of the Consumer Attorneys and the author of the bill both responded with outraged letters to the editor, insisting that the trial lawyers get plenty of respect in the legislature and complaining that opponents of the bill misled the legislature when we argued that artificially inflating medical damages would undermine the effectiveness of MICRA.
The Doctors Company was fortunate to have many dedicated and talented association lobbyists and staff as allies, but credit for this victory also goes to supporters of MICRA outside the capitol building. Physicians and other supporters of MICRA wrote letters, sent e-mails, and met with legislators in person to help defeat this bill. Many more contributed to DOCPAC, helping to elect pro-MICRA candidates of both parties. The grassroots activism and the PAC support by our members were both indispensable to success in this fight.
Thank you to all our members who are willing to get involved in critical legislative battles and to support DOCPAC. You make it possible to promote medical liability reform in state legislatures across the country.