As a physician licensed in California in 1976, I remember the strike by our state’s anesthesiologists and many other physicians protesting skyrocketing malpractice insurance costs.  This protest ended with the passage of MICRA (Medical Injury Compensation Reform Act) in September 1975, which capped awards for non-economic damages (pain and suffering) at $250,000.  This has subsequently resulted in more reasonable medical liability costs in California than in many states in our country.  At the same time, it has preserved access in our state to high risk specialty care.  As a primary care internist, my rates have remained reasonable especially at a time when costs of office based medicines dramatically increased in the late 80’s and 90’s.  These high costs drove me to close my part-time office in 2005 in favor of a full time SNF/CCRC/Teaching based practice.

In the 1990’s, the lack of an inflation rider on for non–economic damages compromised the ability of senior’s and their surviving family members to sue for negligent medical care, since fewer attorneys would take their claims due to low dollar awards for economic damages with so many retired and near the end of life and thereby not having claims for lost wages.  This was one of the reasons our state passed elder abuse laws under civil tort law beginning in 1982 (Elder and Dependent Adult Civil Protection Act), which dramatically increased the potential value of their plaintiff awards if certain criteria were met.

Since MICRA passed almost 50 years ago, plaintiff attorneys have repeatedly proposed legislation or ballot measures to address their concerns about the fairness of this legislation, but so far haven’t significantly modified this legislation and have been rebuffed by voters.  This year, the “Fairness for Injured Patients Act” (FIPA) is slated for the November ballot. 

In this context, the proponents of this measure and CMA (along with CAHF, CHA, and many other stakeholders) have met and have achieved a meaningful consensus to modernize MICRA called “MICRA Modernization 2022”.  It will continue important guardrails of MICRA including the advance notice of a claim, the one-year statute of limitations to file a case, the option of binding arbitration, early offers of proof for making punitive damages allegations, and allow other sources of compensation to be considered in award determinations. 

Cases not involving a patient death will have a non-economic damage limit of $350k as of January 1, 2023, with an incremental increase over the next 10 years to $750k and a 2.0% annual inflationary adjustment thereafter.

Cases involving a patient death will have a limit of $500k on the effective date of January 1, 2023, with an incremental increase over the next 10 years to $1 million and a 2.0% annual inflationary adjustment thereafter. 

Modest updates include the ability to pay awards of future damages over time and limits on plaintiff’s attorney’s contingency fees.

The proponents of the FIFA measure and CMA are working with the legislature and the Newsom Administration to pass this legislation.  If that occurs the FIPA ballot measure will be withdrawn and avoid a costly election fight.  While CALTCM has not yet taken a formal position on this ballot measure, it’s clear we would have opposed it.  This MICRA Modernization Act is much more palatable and seems reasonable in the sense that it recognizes the need to increase the caps from their 1975 values.  For those of us who practice in the post-acute and long-term care (PALTC) setting, the elder abuse causes of action have given plaintiffs the ability to be awarded far more than the $250K.  This new legislation may have less of an effect on us (our malpractice premiums) than those practice in the other settings of care.