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
Examiner.com
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 http://www.shellybeenz.com...


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.

Provisions

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.

Results

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%".

Influence

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.

Controversy

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.

Patient who commented on Internet wins in Minnesota Supreme Court against doctor who sued him for defamation

Mr. Laurion wins, Dr. McKee loses.

The Minnesota Supreme Court agrees with Mr. Laurion that patients have a right to report on the Internet their observations regarding the behavior of doctors. Patients also have the right to report their opinions to medical groups. I don't know what country Dr. McKee thought he was living in. I believe Dr. McKee proved that he has a bad attitude by hounding Mr. Laurion.

See post: Can you tag your doctor a 'tool' online?

See Doctors Silencing Patients on Thank Heaven for Insurance Companies blog.

Read the decision HERE.

The Myth Of Tort Reform: Taking away David's sling

CASD strongly opposes arbitrary attempts to limit tort remedies or consumers' access to the courts -- misleadingly labeled "tort reform". A person or industry which does something wrong should be held accountable for those actions.

The term "tort reform" is used for the proposition that there are too many lawsuits filed by consumers for the wrongs (torts) done by others which caused them injury. Using inflammatory and misleading terms like "jackpot justice" and "shakedown lawsuits," insurance companies and other big businesses spend millions of dollars on propaganda to convince the public there are too many lawsuits and that they are driving up the cost of medical care, increasing the price of products and insurance, clogging up the courts and creating a drag on the economy. These "tort reformers" want to protect the wrongdoers from responsibility for the harm they cause.

The greatest myth of all is that consumer lawsuits are tying up our courts and huge verdicts are hurting the economy. Most civil court filings involve family law disputes. The non-partisan Center for State Courts reports that tort claims account for only between 5 and 7% of all lawsuits in state courts. Tort law is good for consumers and leads to better business practices -- it provides consumers with the right to be financially reimbursed for injury or death caused by dangerous products or below-standard services. We must be able to hold wrongdoers, individual or corporate, accountable for the injuries they cause. The civil justice system is the only way to achieve this goal.

CASD, not CALA, fights lawsuit abuse

CASD Position Statements

Who We Are:
Consumer Attorneys of San Diego ("CASD") is an organization of San Diego trial lawyers who represent consumers, working families, individual workers and others who are injured and need access to the civil justice system. Consumer attorneys protect the rights of individuals by obtaining remedies for injuries caused by the negligence or carelessness of others, and, in the process, achieving safer products, a safe workplace, a clean environment and quality health care. CASD is devoted to preserving the constitutional right to trial by jury, providing access to a fair and impartial court and enforcing the rule of law. CASD also seeks to strengthen the civil justice system through educating the public as to the right to public health and safety and the rights guaranteed by our cherished Bill of Rights.

Arbitration Clauses:
Taking Away Big Rights with Small Print

CASD strongly opposes attempts to limit an individual's right to a jury trial by imposing mandatory arbitration clauses on consumers. Mandatory arbitration strips consumers of their fundamental rights, many times without their knowledge.

Large institutions are increasingly imposing mandatory arbitration clauses on consumers and small businesses in everything from car sales contracts and credit card applications to insurance agreements and health care treatment release forms. A consumer must agree to these arbitration clauses as a condition of receiving a service or buying a product. Even before any dispute over services or goods arises, these clauses mandate that buyers give up their right to a jury trial in court and force them to pay arbitration companies to hear their claims. Mandatory arbitration clauses take away a consumer's fundamental right to trial by jury and other rights - often without his or her even knowing these rights have been eliminated -- and can cost consumers thousands of dollars more than it would cost them to go to court. Sometimes these institutions have "sweetheart deals" with the arbitration providers, which further tilts the tables against consumers and small businesses.

CASD strongly opposes the use and enforcement of unilaterally-imposed mandatory arbitration. CASD promotes fair resolutions of civil disputes and the right of individuals to have their grievances heard by a fair and impartial court and a jury of their peers, but also recognizes that some claims may benefit when arbitration is voluntarily selected by both parties.

Caps on Damages Limit Justice

CASD opposes any arbitrary limit on the amount of damages a jury can award. CASD believes the citizens who serve as jurors in our civil justice system are the people best able to determine what is just and fair after having listened to all of the evidence.

"Damages" is the term used to describe the amount of money it will take to compensate for the harm done to an injured party, so the person is returned, as nearly as possible, to the life he or she would have had absent the injury. Damages are intended to fix what can be fixed (such as reimbursement of out-of-pocket expenses like medical bills and lost wages), and to compensate for what cannot be fixed, for example, pain, physical impairment, loss of enjoyment of life, impaired activities of daily living and disfigurement.

Some corporations, insurance companies, and politicians often claim we need to limit damages a jury can award under the guise that such limits will lower insurance rates and reduce the cost of doing business. This approach protects wrongdoers from the consequences of their negligent and careless actions, shifts the losses caused by the wrongful conduct to the innocent injured person, and fosters unsafe environments, products, and medical practices.

CASD believes in the jury system. Juries are capable of making a fair decision as to damages just as they are capable of deciding whether a defendant should be held responsible for its wrongful conduct - an issue which must be decided before ever reaching the issues of damages. Juries are well aware of the impact a damage award will have on a defendant. However, juries also recognize it is only fair that wrongdoers pay for their careless conduct and that holding them responsible for the harm they cause is an effective deterrent which benefits the public at large.




Class Actions:
Giving Power to the Little Guy

CASD supports class action lawsuits as an economic and judicially efficient way to permit consumers to hold large and powerful defendants accountable for widespread wrongful conduct.

Class actions occur when judges approve a petition to combine many similar claims into one legal action. This type of suit is often brought against large corporate defendants that cheat thousands or even millions of consumers, but usually each in a small way. Combining the cases saves courts the costs and inconvenience of hearing thousands of small cases one at a time, thereby promoting efficiency and consistency. Class actions are often the only way to "level the playing field" for the little guy and hold powerful defendants accountable for widespread wrongful conduct and unsafe practices because the claims are too small for an individual consumer to afford to prosecute on his or her own. When the plaintiffs win a class action lawsuit, the defendant's wrongly-obtained money is returned to consumers away which will hopefully deter other defendants from the same wrongful and fraudulent behavior. In addition, any fees paid to the attorney must be approved by the court. These fees are often paid by the defendant in addition to the recovery to the class members.

Because class action lawsuits benefit large numbers of people, foster judicial efficiency, promote safety and protect our health and the environment, CASD strongly supports the responsible use of this mechanism to hold large and powerful defendants accountable for their unfair and unlawful conduct and practices.




Contingency Fees:
Making Justice Available to All

CASD strongly supports a client's right to enter into a contingency fee agreement with an attorney as part of our commitment to ensure access to the courts for all.

A contingency fee arrangement, frequently called "the poor man's key to the courthouse", allows the client to pay a percentage of whatever compensation is received to the attorney as payment in full for his or her services, regardless of how much time and money the attorney has put into the case. If no compensation is recovered, the attorney is paid nothing. Contingency fee agreements are "rooted in our commitment to equal justice for both those of moderate means and the wealthy." Many individuals would not be able to pursue their claims if they could not have an attorney represent them on a contingency fee basis. If they had to pay the attorney an hourly fee and advance all the costs for the experts required to prove their cases, they would simply have to abandon their claims. This is particularly true for the typical tort claim in which the person has been injured and has lost wages.

Many large corporations, insurance companies and even politicians insist that contingency fees should be limited or eliminated altogether. They are not interested in justice or protecting the consumer. Their goal is to eliminate responsibility for their wrongful conduct by making sure consumers cannot afford to hire attorneys. Limits on contingency fees limit access to justice and help the wrongdoers and their insurers keep the money that should be used to compensate the injured people. Corporations and insurance companies, on the other hand, have no limit on the number of attorneys and law firms they can hire to defend them or on how much they pay these attorneys.

CASD supports a client's right to make a contingency fee agreement with his or her attorney as part of our commitment to ensure access to the courts for all.


Judicial Independence

Consumer Attorneys of San Diego hereby expresses our solidarity in support of the independence of our Nation's judges, juries and courts. While the Constitution guarantees the right of every American citizen to disagree with a decision of a jury or judge, personal threats, demeaning words or creating an atmosphere of contempt are never acceptable. We all need to fear a day when our legal rights are determined by public opinion. The right to be judged by an independent judge or jury must be protected.


Medical Malpractice:
The Remedy When Doctor Doesn't Know Best


CASD is committed to supporting injured patients through the challenges of medical malpractice litigation and obtaining a fair recovery to compensate them for the harm caused by their physician or other health care provider.

Medical malpractice lawsuits permit patients to receive compensation for injuries caused by a negligent health care provider (such as a hospital, doctor or dentist). Medical malpractice lawsuits are costly and difficult to prove, and in many states, recovery is limited by damage caps. To prevail, the patient must have a meritorious claim, gather all relevant records and evidence, then locate a physician willing to review the materials and testify that the defendant health care provider acted negligently and caused the patient harm. Locating a physician willing to take time away from his or her busy practice and testify against "one of their own" can be an extremely difficult task for a patient. Moreover, the fees associated with having these experts testify can be prohibitive to a badly injured patient. Many states already have a "cap" or limit on how much money a patient can recover for the pain, loss of enjoyment of life, impairment, and dramatic change in lifestyle caused by a health care provider's negligence. Thus injured patients and their families are not permitted to recover all of their losses. For example, in California, a patient's recovery for such damages is limited to $250,000, no matter how severe the injuries or how many family members survive a decedent who died as a result of the negligent care or treatment.

Punitive Damages:
A Powerful Deterrent to Malicious Corporate Behavior

CASD opposes limits on a jury's right to award punitive damages as a deterrent to despicable conduct such as fraud, oppression and malice.

Punitive damages deter corporations from engaging in despicable conduct that kills, injures or steals from consumers. Punitive damages are separate and in addition to the compensatory damages awarded to a plaintiff in a lawsuit. In order to obtain punitive damages, a plaintiff must prove by clear and convincing evidence that the defendant acted with "fraud, oppression or malice".

Effective August 16, 2004, a new California law (Civil Code §3294.5) requires that 75% of any punitive damage award in a civil case be paid to California's Public Benefit Trust Fund which uses the money for the benefit of the public. The remaining 25% is payable to the plaintiff. CASD supports the use of punitive damages to deter malicious corporate behavior.

Right to a Jury Trial
Disputes Decided by the People

CASD believes the right to trial by jury is a fundamental constitutional right which should not be limited or abrogated. CASD believes the citizens who serve as jurors in our civil justice system are conscientious and diligent in determining what is fair, just and reasonable based on the evidence and the law.

The right to have a panel of citizens from the community make decisions about legal disputes is one of our most important rights. It is guaranteed in the Sixth and Seventh Amendments to our Constitution. We cherish the right to be judged by our neighbors and not by the government.

In the more than 200 years since the right to a jury trial was guaranteed to the people, there have been increasing efforts to limit this right by arbitrarily precluding a jury trial in certain types of cases or by preventing a jury from deciding certain issues in a case. Some have even advocated doing away with jury trials in civil cases altogether. However, as Thomas Jefferson said, "I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its Constitution."

A jury applies the collective common sense and experience garnered over the years to the case before it and protects the litigants from the potential of bias, prejudice or lack of experience of a single jurist deciding their cases. CASD strongly believes in defending the jury system.