According to Richard Anderson, M.D., chairman and CEO of the Napa, Calif.-based medical malpractice insurer, The Doctors Company, physicians should rally behind the legislation because it will help to drive down costs of malpractice insurance and ensure access to care. The model reform, called the Medical Injury Compensation Reform Act (MICRA), has since been adopted, in a modified form, on a statewide level in Colorado, Florida, Indiana, Montana, Texas and Virginia. Congress has not yet decided on whether to make it federal legislation.
"In the current debates, we know that effective tort reform is best defined as California's MICRA statutes, passed by a special session of the California legislation in 1975. The session was convened to deal with that medical malpractice insurance crisis, which had every hallmark of the medical malpractice insurance crisis that we are experiencing today," Dr. Anderson says.Some 35 years ago, California was experiencing a vast increase in the amount of malpractice litigation, decreased availability of medical malpractice insurance and a greatly increased cost, such that many physicians could not afford malpractice coverage. Physicians in the state went on strike, prompting the legislature to take action.
"To give you a sense of how bad the problem was in California in 1975, 80 percent of all the malpractice litigation in the state's history for the 20th century to date was filed between 1970 and 1975," Dr. Anderson tells Cosmetic Surgery Times.
According to Dr. Anderson, there are four parts to MICRA: The first is a $250,000 no-exceptions cap on non-economic damages.
"There is no cap on overall damages — any actual, provable damage is compensated in full. But non-economic damages, for pain and suffering, are limited to $250,000," he says.
The second prong to the legislation is periodic payments. In other words, if a patient gets a malpractice award meant to cover 30 years of life, then it is paid out over those 30 years and is not written out as a lump-sum check.
"The tremendous advantage of this is that it makes it possible to pay even large judgments without bankrupting the insurance system and it actually assures that the money will be available as it is intended to be used over the years," Dr. Anderson says.
The third aspect, collateral source, states, basically, that there will be no double-dipping. If a patient has disability insurance or health insurance that pays health bills, that patient will not be able to collect for the same bills from another source, such as a malpractice claim.
The fourth part to the law has to do with limitations on attorneys' contingency fees. MICRA uses a sliding scale contingency fee, capping what attorneys can make on cases.
"Even with the limitations, a plaintiff's attorney in California who wins a $1 million claim can still take home $221,000, plus expenses," he says. "The beauty of this reform is that the money goes directly to the injured patient."
Dr. Anderson says that MICRA's four-pronged approach has reduced California's malpractice insurance rates by 25 to 40 percent, compared to what the rates would otherwise be without the reforms.