Bring An Equalizer to the Fight. Choose a Firm That Was Created to Advocate for Victims.

Federal Bill Modeled After California Medical Malpractice Cap

Federal lawmakers are currently considering legislation that would impose a nationwide cap on medical malpractice damages. While such measures have failed in the past, the likelihood of passage is higher by a Republican-controlled Congress.

California’s MICRA Cap

The federal bill is modeled after California’s medical malpractice cap. In this state, the Medical Injury Compensation Reform Act (MICRA) limits noneconomic damages in medical malpractice lawsuits to $250,000. That means that when a person is injured or dies as a result of medical negligence, California law says his or her pain and suffering are worth a maximum of $250,000, no matter how egregious the injuries.

MICRA, enacted in 1975, has not been adjusted for inflation. So while the cost of living has increased dramatically over the past 42 years, the damages limit has remained static.

In fact, the current buying power of $250,000 in 1975 dollars equals approximately $70,000. To date, efforts to amend the law have been unsuccessful. The Troy and Alana Pack Patient Safety Act would have raised the cap to $1.1 million and permanently indexed it to inflation. However, the measure failed in 2015.

Proposed Federal Medical Malpractice Cap

The Protecting Access to Primary Care Act (H.R. 1215) would also cap non-economic damages at $250,000. The cap would apply to medical malpractice suits in which the plaintiff received healthcare covered through a federal program, subsidy, or tax benefit, such as Medicare, Medicaid, or private health plans subsidized by the Affordable Care Act. The proposed bill would also enact several other medical malpractice “reforms,” including the following:

  • The bill eliminates joint and several liability in favor of “fair share” liability. Instead of the plaintiff being able to collect the full amount of damages from any party, each party would be liable only for the amount of damages allocated to such party in direct proportion to such party’s percentage of responsibility.
  • A health care provider who prescribes or dispenses a medical product approved, licensed, or cleared by the Food and Drug Administration could not be named as a party to a product liability lawsuit involving the product and would not be liable to a claimant in a class action lawsuit against the manufacturer, distributor, or seller of such product.
  • The bill also limits contingency fees paid to plaintiffs' attorneys to 40 percent of the first $50,000 awarded to an injured patient, 33 percent of the next $50,000, 25 percent of the next $500,000, and 15 percent of damages exceeding $600,000.
  • When the award of future damages is $50,000 or more, it would be paid in future installments rather than immediately.

Late last month, the House Judiciary Committee voted 18-17 to approve the Protecting Access to Primary Care Act. Democrats on the committee introduced amendments intended to preserve legal protections for victims, such as abused nursing home residents and surgical patients harmed when instruments are left inside their bodies. However, they were all rejected.

Arguments Against Limiting Non-Economic Damages

The sponsors of H.R. 1215 maintain that the legislation is intended “[t]o improve patient access to health care services and provide improved medical care by reducing the excessive burden the liability system places on the health care delivery system.” However, the exact opposite is likely to happen if Congress passes the bill.

In cases where the victim doesn’t have wages (children, the disabled, the elderly, stay-at-home moms) or where the victim dies (and therefore there are no future medical bills to pay), there are zero economic damages, and the most the plaintiff can recover is $250,000. In addition, the $250,000 cap would prevent many legitimate malpractice cases from ever making it to a courtroom. In many cases, the cost to pursue the claim would outweigh the potential recovery. As a result, victims are not only prevented from seeking justice, but there is less accountability for doctors who commit preventable medical errors.

If you or someone you love has suffered serious harm due to a medical error, please contact a San Diego medical malpractice attorney at the Law Offices of Robert Vaage for a free consultation.