Thursday, January 30, 2014

MICRA-Protecting against frivolous lawsuits, or re-victimizing the victim

I have limited familiarity with the people who urge contempt for victims of medical malpractice. One such person is Leslie Devaney, a sometime board member of Citizens Against Lawsuit Abuse. Such organizations support MICRA's severe award limits for medical malpractice.

Ironically, Leslie Devaney wants to prevent public hospitals from giving reasonable compensation to damaged patients, she and her partner Ray Artiano forced Tri-City Hospital to give millions of public money to fired administrators (with a large chunk going to Ms. Devaney and Mr. Artiano, of course.)

So it doesn't seem that CALA membership means a person wants to protect the taxpayer. Apparently, they just want to make sure the public is NOT protected from negligent doctors and other harmful individuals.

Michelle Massey, mother of baby
who died from undiagnosed bacterial infection

MICRA-Protecting against frivolous lawsuits, or re-victimizing the victim
Ica Iova
May 7, 2013

Many states including California, have adopted tort reform measures since the mid 1970’s in response to acute increases in medical malpractice insurance costs. They imposed caps on victim's compensation for noneconomic damages. California also placed limits on attorney contingency fees.

Tort reform in California [MICRA] primarily focused on capping victim compensation for noneconomic damages, also known as "pain and suffering" awards.

The law limits noneconomic damages in medical malpractice lawsuits to $ 250,000, and additionally limits the amount attorneys in medical malpractice cases can collect under a contingency fee arrangement to 40% of the first $ 50,000, 331/3% of the next $ 50,000, 25% of the next $ 500,000, and 15% of any amount that exceeds $ 600,000.

These limits apply regardless of whether the recovery is by settlement, arbitration, or judgment. If the contingency fee arrangement is based on an award of periodic payments, the court must place a total value on the payments based on the projected life expectancy of the claimant, and then calculate the contingency fee percentage.

What does all this mean for you and your family? It means that in case that you, or one of your loved ones, have suffered following an episode of medical malpractice, you’ll not be able to sue anyone, unless you can represent yourself because most likely you’ll not be able to find a lawyer willing to take your case.

In other words, you are victimized twice; once by a medical professional, and then, by a system which protects the perpetrator.

I have recently interviewed one such victim; Michelle Massey’s 7-year-daughter-Jessie Marie Geyer-died in November of 2003, due to a misdiagnosed bacterial infection that could have been treated with antibiotics.

When Jessie’s parents tried to bring to justice the doctors and the hospital responsible for Jessie’s death, they found themselves obstructed by MICRA.

Jeffrey Mitchell-Michelle Massey’s lawyer-said that taking cases like this every day, could lead to economic suicide, and not very many lawyers are willing to take that chance.

It's said that MICRA is protecting doctors and hospitals from frivolous lawsuits.

“I was so brain washed about frivolous lawsuits. When Jessie was killed I was devastated. Then I discovered what frivolous means according to MICRA. That my sweet 7-year-old daughter had no value because she was not a wage earner. Jessie's death was ‘frivolous’. I wonder if that is what you thought frivolous meant. If it were your child, or your mother, father, grandpa, brother, sister, that lost their life because of a preventable medical error, would their death be frivolous?” Michelle said.

She said that on average, 500 people die every day in this country due to medical negligence, and are denied the right to a fair trial.

The Geyers tried to fight the system, and after 3 and 1/2 years, the cap amount was spent, and they no longer had the funds to continue to fight.

To Michelle, the death of her daughter is as vivid as always.

“I remember staring at Jessie's face, tears streaming down my checks, after they said time 1:21AM, how it just lingered in my ear what seemed like for me the final word to be said. Jessie was actually dead. Then I looked at her whole face and traced her lips and mouth and eyelids.”

Michelle remembers as she was taking the gold studs from Jessie’s ears and putting them in her own ears-where they still are today-the memory of the day Jessie got her ears pierced overwhelmed her; a 6-month-old chubby Jessie, with rolls of baby-fat folding over, hit Michelle like an avalanche, realizing that she will never see her daughter growing up, going to college, or getting married.

Since her daughter’s death, Michelle, has fought tirelessly to educate the public about how MICRA needed to be changed. In 2005, she received the Consumer Advocate of the Year’s award.

She continues to be a voice, advocating to make Jessie's Law, the law of the land, and restore what she calls Medical Malpractice Victims’ Constitutional Rights.

“My ultimate goal is to reform and/or overturn MICRA in Jessie's name. We need to make this a national law, so the states can stop fighting about this ongoing issue that is just getting worse with still not one thing changed in since MICRA was put in place.” She said.

Michelle Massey wants you to join her, in her fight for justice. More information about Michelle Massey and her work can be found on her website

Medical Injury Compensation Reform Act
From Wikipedia, the free encyclopedia

The Medical Injury Compensation Reform Act (MICRA) of 1975 was a statute enacted by the California Legislature in August 1975 (and signed into law by Governor Jerry Brown in September) which was intended to lower medical malpractice liability insurance premiums for healthcare providers in that state by decreasing their potential tort liability. MICRA's stated justification, in turn, was to keep healthcare providers as a whole financially solvent, thus lowering the cost of healthcare services and increasing their availability. MICRA's constitutionality was repeatedly challenged during the 1970s and 1980s, but most of it was eventually upheld as constitutional under rational basis review by the Supreme Court of California or the California Courts of Appeal. Almost all of MICRA is still in effect and still part of California law.


MICRA consists of the following parts:

Damage cap - non-economic damages are limited to $250,000. Non-economic damages include claims for pain and suffering, loss of consortium, both of which permit the financial recovery for losing limbs, losing sight or hearing, the ability to walk, and all other losses that do not directly relate to economic losses.
Attorney's fee cap - attorney fees that are taken from the amount of the settlement are limited.
Time limits - shortened statute of limitations for actions against healthcare providers.
Binding arbitration.
Periodic payments - doctors are allowed to pay the award over time.

These are codified at a number of different locations in the California Codes: Business & Professions Code Section 6146, Civil Code Sections 3333.1 and 3333.2, and Code of Civil Procedure Section 667.7.


A RAND report estimates that defendants' liabilities were reduced by 30% as a result of MICRA.[1] Between 1985 and 1988, malpractice premiums rose 47 percent.[2] After 1988, the insurance premiums in California experienced a decrease. It is contested as to whether this decrease was a result of Proposition 103. Proposition 103 enacted Section 1861.01 of the California Insurance Code, which explicitly required the rollback of insurance premiums by "at least 20%".


The perceived success of MICRA in helping California healthcare providers stay financially solvent in turn inspired similar tort reform initiatives in other states. A prominent example was Nevada's Question 3, which was enacted by the voters of that state in 2004 by a 60% majority. Like MICRA, Question 3 set a maximum schedule for attorney's fees, and capped noneconomic damages at a slightly higher number, $350,000. Question 3 was also known as the KODIN Initiative after its main sponsor, Keep Our Doctors In Nevada. KODIN promoted Question 3 by pointing to an alleged trend of Nevada doctors fleeing the state for states with lower malpractice premiums like California. To directly counter KODIN, the Nevada plaintiffs' bar put Questions 4 and 5 on the same ballot, and both 4 and 5 were defeated.


Plaintiffs in malpractice lawsuits and trial attorneys, particularly the Consumer Attorneys of California (CAOC),[6] have continuously fought against MICRA since its inception. Due to the $250,000 cap on non-economic damages, lawyers' fees are also restricted due to the attorney fee percentage cap.

In late 2013, Bob Pack, a former NetZero executive,[7] along with Consumer Watchdog and the Consumer Attorneys of California, launched a campaign to place the "Troy and Alana Pack Patient Safety Act" [8] onto the November 2014 ballot. This campaign is largely funded by trial lawyers across California.[9]

One of the Pack Act's components would be to raise the MICRA cap to current inflation standards (approximately $1.1 million), with future annual adjustments. California's health and medical organizations, including the California Medical Association, Planned Parenthood, and community clinics and health centers,[10] quickly came out in opposition to the ballot measure.

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