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News

Health Care & Hospital Law,
Government

May 23, 2022

Governor expected to sign sweeping medical malpractice bill

The bill, AB 35, was introduced to the legislature late last month and swiftly made its way to the governor’s desk. If he signs it, the cap on injury will increase from $250,000 to $350,000. Over the next 10 years, this cap will increase to $750,000. The cap on wrongful death cases will also immediately increase to $500,000 and will grow to $1 million in 10 years.

A bill updating laws limiting how much money medical malpractice victims could be awarded after a lawsuit is expected to be signed by Gov. Gavin Newsom on Monday.

The bill, AB 35, was introduced to the Legislature late last month and swiftly made its way to the governor’s desk. If he signs it, the cap on injury will increase from $250,000 to $350,000. Over the next 10 years, this cap will increase to $750,000. The cap on wrongful death cases will also immediately increase to $500,000 and will grow to $1 million in 10 years. Afterward, an annual 2% cost of living adjustment will be applied to both caps.

After decades of fighting, the Consumer Attorneys of California reached a historic agreement with insurance companies and medical providers to update California’s Medical Injury Compensation Reform Act of 1975, otherwise known as MICRA. As part of the agreement, the Fairness for Injured Patients Act slated for the ballot this year was withdrawn. All parties involved in the deal said this was a great example of compromise legislation, as the ballot initiative fight would have been costly for everyone involved and would have ended in an all-or-nothing result.

In a news release Tuesday, California Medical Association president Robert E. Wailes wrote, “The Assembly’s passage of AB 35 is an immense achievement that will usher in a new era of stability around malpractice liability in California for decades to come. This legislation will ensure that MICRA’s essential guardrails remain solidly in place for patients and providers and ensure that our health care delivery system remains accessible and affordable for Californians, while providing fair compensation to injured patients.”

Michael A. Kelly, a shareholder of Walkup, Melodia, Kelly & Schoenberger, has spent a substantial amount of his career doing medical negligence work. He had previously said MICRA is “among the most unfair pieces of legislation I have ever seen in terms of the way it has really penalized faultless patients, mostly the parents of children and partners of nonworking spouses.”

Kelly described the new bill as a positive step forward but recognizes that it is an imperfect solution born of compromise. He said the caps that are in place make lawsuits cost prohibitive for many medical malpractice victims and with the new legislation, fewer attorneys will have to look to their clients and tell them half or more of what they may recover will go toward costs and attorney fees.

“I know lawyers who do this work will tell you that in cases where recovery is exclusively non-economic, plaintiffs’ attorneys simply could not afford to prosecute those cases and clients could not emotionally afford the notion of spending two years in litigation for that kind of net result,” Kelly said.

When he spoke previously with the Daily Journal, Richard A. Cohn of Aitken Aitken Cohn was cautiously optimistic about how big a positive impact the changes would have for medical malpractice victims. “Will the increased cap provide more access to justice? I think the answer is maybe,” he said.

Cohn said his feelings remain very much the same now that AB 35 is on the governor’s desk. He expected there would be no changes between what was agreed upon between the Consumer Attorneys of California and the medical industry groups and the quick progress the bill made through the Legislature was a foregone conclusion.

“It’s bittersweet, because it’s been far too long a period of time under the previous damages cap and so many people have been under compensated unfairly. Even with the new caps, it’s still not full compensation compared to other types of personal injuries,” Cohn said.

He also stressed that medical malpractice litigation is costly and complex as well as highly defended, leading to victims having to fight extremely hard for any recovery at all and often suffering a financial shortfall after the case.

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Jonathan Lo

Daily Journal Staff Writer
jonathan_lo@dailyjournal.com

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