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Why Do Medical Malpractice Caps Matter?

Note: This is the first installment of a series about medical malpractice caps in California and the initiative on the ballot this November that proposes to raise them.

This November, there is a new initiative on the ballot that is of great importance to me and past and future victims of medical malpractice in California. The measure seeks to raise caps on medical malpractice cases from $250,000, where they've stayed since the Medical Injury Compensation Reform Act of 1975 (MICRA), to $1.1 million, a figure that adjusts for inflation over the past forty years.

If you're not a doctor or an attorney, it can be difficult to understand why raising caps on medical malpractice lawsuits is an important issue. It can be even harder to formulate an opinion on the matter, both because it's so obviously divisive - with doctors, healthcare providers, insurance companies and their lawyers on one side and attorneys representing those injured by malpractice and their clients on the other - and because it is indisputably complex.

In the weeks that follow, I will attempt to suss out a variety of issues pertaining to this important bill. From the outset, it is important to note, if you have not already gleaned this from my website, that I am a San Francisco-based personal injury and medical malpractice attorney, and I do represent victims of medical malpractice for a living. My blog is written from that perspective, and this will be no different. I feel strongly that we need to vote to raise caps, and that this initiative is not a money grab or an act of greed, as the health care industry has and will be claiming. I will tell you that confidentially, many lawyers for doctors and hospitals will candidly admit that the current laws are unjust in favour of their clients.

Here's the scary fact, and the reason why this initiative is so important: You could easily be one of my clients someday. You could become the victim of negligence on the part of a doctor or healthcare provider, and you could instantly start drowning in a sea of medical bills you simply cannot afford to pay. You could wake up one day with a life that looks nothing like the one you led before, through no fault of your own. This isn't a dramatization. It's the truth. I've seen it happen far too many times.

Even worse is the very real probability that you could be injured but not be able to find a lawyer willing to take on your case because of the financial realities of the current legislation. At present, only a select handful of lawyers in California represent medical malpractice victims because the cases are difficult, complicated, expensive and our fees are limited by statute. Of the many cases offered to me weekly, I accept less than 1% because I cannot reasonably tell my prospective clients that they are likely to be better off financially after the case is over. If that is not likely, doing the case makes poor business sense. This is often true even when I feel confident that I could prove the malpractice the clients claim. It is just that the legislation so limits financial recovery even if the malpractice is proven.

On the off chance that you someday find yourself in this kind of situation, I believe it's important to know what the current and proposed caps would mean for you. That's why I've chosen to explore this topic on my blog, and I hope you'll read along and perhaps learn something you didn't already know, or contribute your thoughts and add to the dialogue. In the coming posts, we'll cover the history behind MICRA, the inequities it has created in the justice system, as well as the myriad ways in which it has constricted victims' access to compensation. It is my hope that this series will help lead to an increased understanding of the forces at play, and that come November, a few people will cast a more informed vote.

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