GOP covets state medical malpractice caps

0 Comments | Oakland Tribune, Apr 7, 2003 | by Rebecca Vesely, STAFF WRITER

In malpractice cases, medical experts are extremely important, and those witnesses charge upward of $400 to $1,000 an hour, Bostwick said. Other costs include obtaining, compiling and analyzing medical records, hiring investigators, paying for court reporters' and defense experts' time for depositions. All costs are taken out of malpractice awards.

"It can be horrendously expensive," Bostwick said. "If you're lucky, expert testimony will run $30,000 to $50,000. A complex, tried case will run over $200,000 in expert testimony."

Shimamoto said that she was told by the several malpractice lawyers she had a strong case, but because of the monetary limits to noneconomic damages, they would not take her on. "One lawyer told me, 'If it had been your face that was carved up I might be able to do something.'"

The California Medical Association disagreed that MICRA has had an impact on the number of malpractice cases going to trial. "In the 25 years that MICRA has been around there has been no decline in the number of cases that get filed," Warren of the CMA said. "MICRA does create limits on lawyer fees, and I think that says more about what lawyers are interested in than the legitimacy of cases."

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A 1991 Harvard Medical Practice Study showed that only 2 to 10 percent of injured patients ever get as far as filing a lawsuit.

California consumer groups said that the debate going on in the Senate underscores the inherent problems of MICRA.

"It strikes me as proof of how inequitable California's malpractice law is when Frist allows for twice the non-economic damages of what we have," Court said. "It shows how pitiful our state law is."

The CMA argues that higher malpractice caps would drive doctors, especially those in high-risk specialties such as obstetrics, out of the field.

"No one is advocating that injured people get no money," Warren said. "But society needs to make some decisions because this issue is beginning to impact access to care for everyone."

Shimamoto did not receive economic damages to pay for the seven surgeries she needed to fix her breast, including one that lasted 10 hours and required two teams of surgeons. Or the physical therapy required so she could stand upright and walk again. Her health insurance covered all that.

"I consider myself lucky now," she said. "But I think about all the other women over age 50 whose insurance premiums will go up because of the cost of my surgeries."

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