Measuring The ImmeasurableMarch 21, 2012 · Taylor Ernst · Blog - Medical Malpractice Category · Comments Off on Measuring The Immeasurable
Imagine this: you are trying to conceive your first child. You’ve bought a house in a neighborhood with good schools and picked a career that will allow you to be flexible. Then imagine: as a result of medical error you are now infertile. To make matters worse, imagine that you are in California.
In 1975 the California legislature passed the Medical Insurance Compensation Reform Act (MICRA). This legislation was enacted with the purpose of lowering malpractice insurance rates for medical professionals. The act provided for:
* A $250,000 cap for non-economic damages
* A short statute of limitations for medical malpractice suits
* A sliding scale for attorney’s fees that deter attorneys from accepting complex claims
Non-economic damages (also known as pain and suffering) are awarded to compensate for that which cannot be valued, and might be awarded for disfigurement, death of a relative or loss of fertility.
As a result of MICRA, Californians can only recover $250,000 for pain and suffering in medical malpractice suits, regardless of how egregious the medical error may have been. To add insult to injury, the MICRA cap does not adjust for inflation. Recovery is limited to $250,000, even though $250,000 in 1975 is over a million dollars today.
Furthermore, the limitation on damages disincentivizes attorneys from taking on medical malpractice cases. In many instances, it will not be economically viable for lawyers to litigate a case that is particularly complex, given that damage awards are so limited. Thus, an individual that has suffered a significant injury or loss at the hands of a careless healthcare provider may have no means of recovery.
MICRA has placed a burden on individuals who seek medical treatment in California, yet it has not succeeded in its purported goal of lowering insurance rates for doctors. This is a classic case of cost-benefit analysis gone wrong in practice. Even though they were among the main proponents of the bill, medical practitioners experienced a steep growth in their medical malpractice insurance premiums until 1988, when Proposition 103, a bill aimed to curb the rampant growth of insurance premiums, was finally passed.
We have incurred the cost and received no benefit. MICRA has not achieved its goal of helping doctors, and in many cases may entirely prevent victims of medical malpractice from recovering anything at all.
Back to imagining…You are now infertile. The economic damages you suffered are immeasurable. Your doctor made a devastating, irreversible mistake. Yet the doctor does not get punished on the scale that matches the mistake that was made. Great lawyers do not take these types of cases in California. There is little you can do about it. Tough.
Photo Courtesy of diekatrin