No other limitation of attorney fees exists for any other type of professional negligence or for that matter, simple negligence. What options does she have to seek damages for her loss? The answer is not about whether monetary damages are the appropriate way for her to seek compensation, as they are the only way our system provides for compensation.
She can recover economic damages reimbursement for unpaid medical expenses, loss of income, etc. No exceptions. But wait, the reality is that most competent and experienced attorneys are reluctant at best, or at worst, unwilling to take such a case.
In the end, the relatively low amount of fees available to an attorney to handle a medical malpractice case makes most attorneys walk away from what is otherwise a case of liability, as the time and costs to prosecute the case are too high when considering the MICRAdamage and fee restrictions.
The cost of trying a case—including experts and other costs—has increased significantly since , yet there has been no adjustment in MICRA during that same time. Finally, most insurance policies allow the negligent doctor to have approval rights over any settlement offer.
So consider the facts: 1. Attorney fees are statutorily limited; 3. Those expenses are not recovered unless the victim prevails against the teams of insurance industry lawyers who defend negligence cases. But because of the tight caps on potential judgments, and because attorneys take the cases on a contingency fee basis i.
Meanwhile, MICRA has failed to live up to its original goal of reducing medical malpractice insurance premiums for doctors.
In fact, national studies have shown that such premiums are actually more costly in states such as California with caps on damages. In the process we have battled deep-pocketed opponents with a vested interest in seeing that the law remains unchanged. These caps vary by dollar amount and detail:. Many states also place caps on economic and non-economic damages in all personal injury cases, or in product liability cases. You can find the specific laws in your state here.
Herein lies a sad tale. In , a group of consumer watchdogs was able to have Proposition 46 placed on the California state ballot. This amount would adjust the rate for inflation. Prop 46 would also amend MICRA so that the amount would automatically adjust for inflation going forward. It also required drug and alcohol testing of doctors, a database and reporting of positive tests with the California Medical Board.
The intention was to preserve a high standard of care by medical professionals. Sadly, this aspect of the law attracted much more attention than the issue of outdated medical caps. Many privacy advocates, perhaps rightly, opposed this proposition. But would the bill have passed without the drug-testing requirements? According to Ballotpedia , a majority of the top donors opposing Proposition 46 were, in fact, medical malpractice insurance providers. These organizations included:.
As a result, the ballot initiative was defeated. The November defeat of Proposition 46 shows what consumers are up against in the fight for justice against medical negligence. In some states, challenges to limits on damages in medical malpractice lawsuits have been successful, on the grounds that the laws are unconstitutional. It provided no evidence for how the law would achieve the goals of controlling costs, increasing access to health care, or maintaining high-quality medical treatment.
That case is still pending, but similar laws have been ruled unconstitutional in courts in Alabama, Florida, Georgia, Illinois, Kansas, New Hampshire, Oklahoma, and Washington.
Those states currently do not have any caps on medical negligence damages. As is so often the case, the wisdom of our founding fathers may be the key to restoring justice to innocent victims of medical malpractice. More recently the courts have taken a particular interest in the question raised in cases such as Pouzbaris v. Prime Healthcare Services Cal. In so finding, the Court of Appeals rejected the notion that the mere presence of an unsafe condition at a hospital was enough to trigger MICRA when the condition injured a patient.
TLDR: Unless your doctor somehow causes you to slip and fall in the middle of treating you, chances are that ordinary negligence rules, not MICRA, will apply to a mundane injury that just so happens to take place at a medical facility.
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