Posted On: August 11, 2009 by Mark Bello of Lawsuit Financial Corp.

Consumer Attorneys of California Set to Battle That MICRA Is Unconstitutional

The Consumer Attorneys of California may be teaming up with Robert Peck, the Washington D.C. attorney who has been successful fighting caps on constitutional grounds in various states, to challenge MICRA (Medical Injury Compensation Reform Act of 1975). KCRA 3 in California reports that a recent challenge was denied in the state court of appeals, but may be on its way to the California Supreme Court.

I have been actively blogging about these issues at this location and many others, because I am not convinced that the public is aware of the injustices made possible by these statutory restrictions on damage recoveries. Without such restrictive legislation, there are no limits to how much money you can recover when you or a loved one is maimed or killed in the operating room; you submit your case to a jury and the jury decides value. Medical bills and wages are "out of pocket" expenses and not subject to any damage 'cap'. It is 'pain and suffering' awards (and damages that punish outrageous conduct, called "punitive damages") that the pro-insurance company caps are designed to limit. Pain and suffering and/or punitive damage awards can be millions of dollars. In California and other states with these caps, the pain and suffering recoveries are limited to $250,000, a 30 year old cap figure, established by the 1975 law.

Sometimes, the circumstances of a catastrophic injury or death require an award of millions for the injured person's sustenance, but that doesn't matter to the pro-insurance group (some of your own legislators are part of this group-remember that next time you step into the voting booth); these pro-insurance, anti-consumer guys just don't want to pay it. They would rather hold onto it as "profit" and we all know that insurance companies make billions in "profits". Instead, you pay for it in public assistance. That's right, folks, PUBLIC ASSISTANCE, if victims are not appropriately compensated by the insurance company and the medical facility that took on the risk and received compensation for it, public funds will be the only means of support for the injured, disabled and survivors of those killed.


The KCRA article features the case of Stanley Stinnett a young man who died after a "series of medical mistakes" in a California hospital. His widow settled with the hospital, and the case went to trial against the doctor. The jury found in her favor, and awarded her $1.4 million in medical expenses and wages, and $6 million for pain and suffering. Under current law, she won't see $6 million; her recovery is capped at $250,000, a $5.75 windfall for the doctor and his insurance company.

There is an argument to be made that restrictive laws like MICRA result in lower insurance premiums for the medical community, which, in turn, would make health care more affordable. The fear is that "good doctors" would leave their respective states. Wouldn't punishing bad doctors with higher rates and rewarding good ones with lower rates would accomplish the same thing? Wouldn't a concerted effort by the medical community to improve transparency and reporting and limit careless medical mistakes? Why punish the victim/patient? As Chris Dolan, an attorney/member of the Consumer Attorneys of California says:

"It (capping pain and suffering at $250,000) was just a terrible thing to do to people who've been harmed and a great thing to do to the insurance companies' bottom line."


This is a question of conscience, a question of justice, a question of fairness. The caps argument reminds me of the Ronald Reagan "trickle down economics" theory that George Bush senior once called "voodoo economics". The suggestion that insurance company profits, made on the backs of the injured, maimed, disabled and deceased, will "trickle down" into the pockets of consumers and doctors is ludicrous. It is also grossly unfair to the one of the weakest segments of our society. The threat of a large medical malpractice award is a strong deterrent against that keeps us safer. If there are limited or no consequences for bad behavior, bad behavior will continue. It is really that simple.

Lawsuit Financial provides medical malpractice lawsuit funding. It is one of a very select group of legal finance companies that has the expertise to underwrite and fund medical malpractice cases. Cap or no cap, we fund cases against their prospective case value; thus, arguing for the abolishment of caps does not have any significant, direct benefit to our company. However, Lawsuit Financial is a pro-justice, pro-consumer company. As such, we will continue to stand up for justice, in as many forums as possible. Please, show your strong support for the abolishment of caps or limits on recoveries in medical malpractice cases and/or other personal injury cases. Contact your elected officials, find out where they stand on these issues, and let them know that you will not vote for someone who supports these types of injustices.