The Medical Malpractice Compromise

It appears the California legislature is likely to approve a negotiated compromise that would revise limits on California medical malpractice claims.

The bill, AB 35, would amend MICRA (the Medical Injury Compensation Reform Act of 1975) which places severe caps on recoveries for non-economic damages in medical malpractice actions. A link to the legislative analysis of AB 35 is included at the bottom of this post.

Under the negotiated compromise, supporters of MICRA reform would pull a reform initiative known as The Fairness for Injured Patients Act from the November 2022 ballot provided that AB 35 is passed and signed by Governor Newsom before June 28, the deadline for removing an initiative from the November ballot.

Efforts to reform MICRA have resulted in expensive political battles that failed over the years, so this is a welcome development that will provide some relief to individuals injured by medical malpractice. Under AB 35, instead of the current $250,000 cap on non-economic damages in non-death cases, the limit would rise in chunks to $750,000 over a ten year period. In death cases, it would rise from $500,000 to $1 million. After ten years there would be a 2% annual adjustment.

Also, AB 35 would allow separate limits against health care institutions (defined differently from health care providers) and also against unaffiliated health care institutions.

As of the date of this post, no known opposition has been registered with the California Senate Judiciary committee.

It should be noted that under current law, Civil Code 3333.1 provides that:

“(a) In the event the defendant so elects, in an action for personal injury against the health care provider based upon professional negligence, he may introduce evidence of any amount payable as a benefit to the plaintiff as a result of the personal injury pursuant to the United States Social Security Act, any State or Federal Income Disability or Workers’ Compensation Act, any health, sickness or income-disability insurance, accident insurance that provides health benefits or income-disability coverage, and any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the cost of medical, hospital, dental, or other health care services. Where the defendant elects to introduce such evidence, the plaintiff may introduce evidence of any amount which the plaintiff has paid or contributed to secure his right to any insurance benefits concerning which the defendant has introduced evidence.

“(b) No source of collateral benefits introduced pursuant to subdivision (a) shall recover any amount against the plaintiff nor shall it be subrogated to the rights of the plaintiff against a defendant.”

However, the proposed ballot initiative, the Fairness for Injured Patients Act included a provision that would repeal Civil Code 3333.1. Repeal of that would have allowed workers’ comp employers and carriers to have subrogation rights in California medical malpractice claims, something they do not currently have under Civil Code 3333.1(b). But repealing Civil Code 3333.1(a) would seemingly have removed the ability of a medical malpractice defendant to introduce evidence of workers’ comp benefits paid to a malpractice plaintiff.

So the Fairness for Injured Patients Act would have had some implications for the California injured workers and employers. 

The negotiated compromise AB 35 sidesteps those changes proposed under the initiative.

The text of AB 35 and a California Senate analysis of the bill can be found here:

https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220AB35

Here is a link to information on the proposed 2022 ballot initiative known as “The Fairness for Injured Patients Act”:

https://ballotpedia.org/California_Changes_to_Medical_Malpractice_Lawsuits_Cap_Initiative_(2022)

By Julius Young

Courtesy of Workers Comp ZONE

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