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NEWS RELEASE: Families of Injured Patients File CA Ballot Measure to Adjust 1975 Cap "Fairness for Injured Patients Act"
Consumer Watchdog


September 26, 2019

Contact: Jamie Court, 310-874-9989

Families of Injured Patients File California Ballot Measure To Adjust $250,000 Maximum Compensation Cap Set by Politicians In 1975 That Has Never Been Updated

Sacramento, CA -- The father of a 29-year-old man disabled for life by medical negligence when he was two and the parents of a young girl with life-long disabilities, who await their daughter’s medical negligence trial, filed the Fairness for Injured Patients Act today, a proposed initiative for the November 2020 ballot.  

The ballot measure would adjust the maximum $250,000 compensation cap set in 1975 by the legislature on quality of life and wrongful death survivor damages that has never been updated.  The initiative adjusts the compensation cap for inflation, allows judges and jurors to decide that compensation above the cap is appropriate in certain cases of catastrophic injury or death, and requires that juries be informed about the existence of the cap.

California’s maximum $250,000 compensation cap set by the legislature 45 years ago is worth 80 percent less today, only $50,768 in 1975 dollars. Indexing the $250,000 cap for inflation would raise it to $1,231,084.45 in today’s dollars.

More than half the states in the nation have do not have caps like California. 20 states and the District of Columbia have no caps at all. 15 other states have caps with exemptions for wrongful death or catastrophic injury. California is 1 of just 3 states with a cap as low as $250,000 with no exceptions.

Read the proposed ballot initiative.

Scott Olsen, the proponent from Chula Vista, and a board member of the nonprofit group Consumer Watchdog, learned of the 1975 cap after his two-year-old son Steven suffered a head injury in 1992.

In the emergency room, Steven was repeatedly denied an $800 CAT scan, despite his parents repeated pleas. Experts and a jury later found the scan would have prevented Steven life of blindness and cerebral palsy. The jury’s $7 million verdict to compensate Steven for his lifetime of darkness, brain damage and loss of the quality of life was reduced under the 1975 legislative cap to $250,000 when the jury left the room. Steven is now 28 and the family could have used that money.

“My employer’s insurance used to cover the costs of Steven’s care, but I had to leave my job after my wife Kathy died unexpectedly at age 59,” Scott Olsen said. “She had quit her job years earlier to take care of Steve.  Due to the 44-year-old limits on our rights, Steven has to get his healthcare from taxpayer-paid Medicare today.  I wonder every day what will happen to Steven when I can’t take care of him any longer.  I am filing this initiative to prevent this from happening to other families.”

Bree and Nelson Moreno’s daughter Mia’s heart stopped after surgery when she was just a few months old. Mia had been negligently over-sedated and left without monitoring. She now lives a life of Cerebral Palsy, has very little control over her body’s movement, and will require lifelong care.  She will never live independently, be able to bathe or use the bathroom by herself, get married or have her own family.  Her mother Bree had to quit her job to provide Mia with full time care. The Morenos, the initiative’s other proponents from Fullerton, await their day in court. 

If the Fairness for Injured Patients Act is enacted in the November 2020 election, then the jury that decides Mia’s case will not be limited by the $250,000 compensation cap because she has permanent brain damage and Cerebral Palsy.

“The jury in Mia’s case should be free to make a full decision that addresses her life-long injuries that is not overridden by the one-size-fits-all compensation cap set 45 years ago by politicians in 1975 and never adjusted,” said Bree Moreno. “My daughter’s quality of life and future shouldn’t be determined by an arbitrary 45-year-old compensation limit that doesn’t apply in three dozen other states.”

Olsen and the Morenos noted three of the more perverse aspects of the 1975 compensation cap in the ballot measure’s findings:

“California juries are not told about the 1975 legislative cap or made aware that the damages they award a patient will be arbitrarily reduced to $250,000 notwithstanding the severity of the medical negligence or of the harm caused to the patient or survivors.”

“The current 1975 law unfairly discriminates against women and their survivors because women do not receive equal pay and also do not receive fair compensation for losses that specifically affect women, like loss of fertility, failure to diagnose breast and cervical cancer, and injuries to women during childbirth.”

“This severe restriction on patients’ and survivors’ legal rights to hold medical providers accountable was accompanied by a promise that a strong regulatory system would be created to protect patients from harm.  That never happened.  Patient safety scandals over the last 45 years have demonstrated that the health care system has been unable to police itself.  As a result, there are no consequences in many cases of negligence, resulting in a decline in patient safety and quality of care.”

The proponents also target the added cost to the health care system because wrongdoers are not paying for their own negligence.

The initiative states: “The cost of caring for undeterred medical negligence has and will add significant costs which are borne by California taxpayers and health care insurance providers rather than wrongdoers.”

In addition to helping hold wrongdoers accountable, the initiative addresses the shifting of billions in costs from wrongdoers to public programs and private insurance by making other key changes. It disallows introduction of evidence of collateral sources of support, such as Medicare or health insurance policies, which is the standard in other civil cases, and ends mandatory periodic payments to victims, which can force them onto public assistance programs.

The Fairness For Injured Patients Act also adjusts the thresholds in the mandatory attorney fee limits for inflation to guarantee victims have contingency fee attorneys and allows judges the discretion to make sure attorneys’ fees are fair and not excessive in cases of catastrophic injury.

In addition, the proposed law provides protections for medical providers against meritless lawsuits by requiring certificates of merit backed by experts or attorneys filing meritless cases will have to pay the medical providers’ attorney’s fees and costs.

Olsen and the Morenos articulate the measure’s purposes in its third section.

SECTION 3. Intent.

  1. The maximum $250,000 compensation cap set by politicians in 1975 for quality of life damages for patients injured by medical negligence should be adjusted for inflation.
  2. Juries should be informed of the compensation cap.
  3. Judges and juries, not politicians, should have the discretion to decide whether the cap applies in cases of medical negligence that cause catastrophic injuries or death.
  4. Judges, not politicians, should have the discretion to determine that the fees paid to an attorney are reasonable and not excessive in cases of medical negligence resulting in catastrophic injury or death and update attorney fees originally capped in 1975 for inflation.
  5. The collateral source rules that apply in other civil cases should also apply in medical negligence actions and periodic payments for medical negligence verdicts and judgments should be disallowed.
  6. Preserving patient rights in California should be balanced with safeguards and deterrence against meritless lawsuits.  Attorneys who file medical negligence lawsuits should be required to file a certificate of merit and attorneys who file meritless lawsuits alleging medical negligence should pay the doctors’ attorney’s fees and costs. This, along with extending the time patients have to file as in other cases will provide sufficient time to obtain a certificate of merit and will deter and reduce the number of meritless lawsuits.”

Consumer Watchdog has been working with injured patients like Steven Olsen impacted by the 1975 law for decades and will be supporting the effort to pass the ballot measure.

“The most progressive state in America has the most regressive laws for injured patients,” said Jamie Court, Consumer Watchdog’s president. “It’s time for voters to restore fairness for patients after 45 years of indifference and to make wrongdoers, not taxpayers and health insurance policyholders, pay the cost of their own negligence.”

Trial By Woman author Courtney Rowley and her husband Nick Rowley, who lost a child due to medical malpractice during his first marriage, are heading up the fundraising and awareness efforts.  Nick, 42, is a nationally renowned trial lawyer, military veteran and former medic who has had over 150 jury trials in states across America resulting in over $750 million in jury verdicts.  Nick and Courtney have dedicated their lives to representing patients and families and preservation of the jury trial method of obtaining civil justice in America.

“This unjust law was passed when John Lennon was still alive, President Ford was president and the Vietnam war was just ending,” said Nick Rowley. “The only thing that has happened in 45 years is thousands of patients and families have experienced horrific injustice while insurance companies have made countless billions. Now it’s time for voters to be the jury and do what politicians have failed to do, adjust and update a horribly unjust law.”

“This is not only a grandparents’ and parents’ issue, it’s a women’s issue,” said Courtney Rowley. “Women are paid less than men in the workforce, are still the stay at home parents in most households.  When a medical negligence case is pursued on behalf of a woman for an injury specific to women or death of a woman cases are often worth a maximum of $250,000, which after attorneys’ fees and costs is less than $20,000 in 1975 dollars. This law is despicably unjust and needs to be changed.  Politicians and Judges have not had the courage, we believe California voters will in the 2020 election.”

Read newspaper editorial boards opining on the need to adjust the cap.

Read about how the vast majority of states do not have caps like California's.

- 30 -

Coalition launches MICRA ballot initiative with backing from wealthy trial lawyer

By Angela Hart with 

09/26/2019 08:01 AM EDT

SACRAMENTO — A deep-pocketed lawyer and a coalition led by Consumer Watchdog are launching a November 2020 ballot initiative that would multiply the amount medical negligence victims stand to receive in court, potentially resurrecting a political dogfight involving attorneys, hospitals and doctors.

Opponents of the Medical Injury Compensation Reform Act, passed in 1975, are seeking to pass a November 2020 ballot initiative that would index the legal payout cap for inflation — initially raising it to $1.2 million for people injured as a result of what's referred to as "non-economic" damages such as pain and suffering, loss of limbs or hearing and wrongful death, according to a document obtained by POLITICO.

The coalition estimates it will need $4 million to gather signatures and qualify the initiative. The effort comes nearly five years after another MICRA initiative was roundly defeated amid opposition from major health industry groups.

Three initiative filers said they're getting involved because they've been personally affected by the cap and are expected to submit the "Fairness for Injured Parents Act" Thursday.

Trial lawyer Nick Rowley said the lungs of his own infant son were "blown up" as a result of medical malpractice. He told POLITICO he will dig into his own pockets and do "whatever it takes" to undo the cap, while parents of injured kids will be the face of the initiative.

"I've had to look countless parents in the eye and tell them that the pain and suffering caused by the death of their baby is only worth $250,000," Rowley said in an interview. "It's the most horrific unjust law in the country. ... The reality is that we are all in a state where our politicians and governors have all been in the pocket of the insurance companies and lobbyists, and that's why these sons of b------ haven't done anything about it."

In addition to raising the cap for inflation, the initiative would allow judges and jurors to provide additional damages above that cap for permanent disability or death and require that juries be informed about the existence of the cap, according to Consumer Watchdog, a Santa Monica-based group that teamed up with trial lawyers to back the 2014 initiative. The new proposal would also require wrongdoers to pay more of the cost of patient care for those injured by medical malpractice.

"Suffering and loss of life is worth more than $250,000, and most other states don't have caps like California," said Jamie Court, president of Consumer Watchdog. "The fact that it hasn't been adjusted since the Vietnam War ended makes it regressive, and any limit on what a jury can decide because of what politicians decided in 1975 is regressive."

The formal initiative filers include Chula Vista father Scott Olsen, who said his son was disabled for life by medical negligence more than two decades ago, and a Fullerton couple whose daughter has Cerebral Palsy that they say is also the result of medical negligence.

Rowley will fund the initiative, while Consumer Watchdog will primarily handle strategy and communications, they said.

The 2014 ballot initiative would have raised the compensation cap beyond $1 million but failed miserably, with 66.8 percent of voters opposed. But Proposition 46 was a grab bag of wishes that ultimately led to its demise.

Critics blasted the initiative as a ploy by trial attorneys to generate more legal fees for themselves. Controversial provisions would have required drug testing of doctors and mandated that health care practitioners consult a prescription drug database before prescribing opioids and other controlled substances. 

"It was confusing to voters, and 2014 was historically low voter turnout," Court said. "The good thing is it raised the debate... This time it'll just be about medical negligence, and most importantly this is going to be a big blue wave and we're going to have an electorate truly reflective of California values."

Court didn't rule out a legislative deal to keep the initiative off the ballot. The Consumer Attorneys of California are not involved with the launch, he said.

Political consultant Gale Kaufman ran the 2014 opposition campaign but said Wednesday she couldn't comment until reading the initiative. Individual groups involved in the 2014 campaign declined to comment, including the California Medical Association, which represents doctors.

But a coalition opposing MICRA changes, Californians Allied for Patient Protection, warned in a statement to POLITICO of higher health care costs. The group's board has representation from organizations representing doctors, dentists, insurers and hospitals, among others in the health industry.

“I have yet to see any language of a proposed initiative so I cannot speak to any specifics at this time," said Lisa Maas, the group's executive director. "However, what I can tell you is that last time there was an initiative to lower MICRA protections, California voters realized that changes to MICRA would ultimately increase costs and decrease access to health care and resoundingly rejected the proposition by a 2-1 margin in every county across the state.”

Backers say the new initiative would also address a primary reason for the 1975 law — frivolous lawsuits brought against doctors. It would require that plaintiffs file a certificate of merit, proving there were witnesses to alleged incidents and that lawsuits are not fishing expeditions for hefty financial payouts. 

"By putting this requirement in there, the consequence of filing a meritless lawsuit is that you'll have to pay the health care providers' attorneys fees, so that's going to be a strong deterrent," said Rowley, who said he opposed the 2014 initiative.

Rowley said he's prepared to spend above the roughly $13 million that proponents spent in 2014. He said his son's lungs were "blown up" due to improper use of a ventilator during hospitalization for a respiratory illness.

"I recovered professionally, but at the same time I made it my life's purpose to represent patients and families — victims of medical negligence," he said.

He said during 2017, he met with Gov. Gavin Newsom as a gubernatorial candidate. Newsom told him that MICRA was a bad law that never should have been passed, and that he intended to change it. But he said Newsom as governor has not responded to requests to discuss the matter, though Rowley said he'd like Newsom to endorse the initiative.

Newsom spokesperson Nathan Click declined to comment.