Reflecting on the defeat of medical malpractice reform

By: Geoff Wells

If there's one thing I've learned about trial lawyers is that even in the face of defeat we never back down from a fight even if our opponent is bigger, better funded and more powerful. California's plaintiff lawyers have spent the past two months reflecting after failing to pass Proposition 46 in last November's election. The initiative would have amended the Medical Injury Compensation Reform Act (MICRA) of 1975 to lift the cap on medical malpractice damages, require drug and alcohol testing of doctors, and create a prescription database to curb overprescribing and the drug overdose epidemic.

We lost in the election, by a long shot. But instead of running away from the schoolyard bullies, a grassroots movement is building momentum, reigniting a fire that won't be smothered because this battle represents the core of our beliefs. Consumer attorneys will always step up and fight for a law that provides equal protection and fairness for the citizens of this great state.

One of the biggest disappointments following the election was that many of our long-standing supporters didn't show up at the polls. In an off-year election, our message failed to resonate with voters and the voices of real people, impacted by the outdated MIRCA law, were drowned out by attack ads that focused on "greedy" trial lawyers. It's tough to get a "yes" vote on a proposition - especially when the opposition spends $50 million to get a "no" vote. As the underdogs, taking on the big money interest we had to confront and dispel the misconceptions and myths about our mission.

We realized the challenges early on, when the Los Angeles County Board of Supervisors announced plans to endorse the "no" vote. Our team set up a meeting to share the stories of some of the families affected by medical malpractice.

The board listened to the heart wrenching experiences of people like Annette Ramirez, a successful career woman and mother of two who suffered from a tragic case of sepsis when a negligent doctor nicked her intestines during a routine hysterectomy. The medical mistake left Annette a quadruple amputee, unable to walk or hug her husband and children. Or 6-week-old Mia Chavez who died from whooping cough after her physician failed to recognize or test her for this potentially fatal disease. And cases like Paul Ethier, a surfer who hit his head on his surf board while riding a wave. The ER doctor stitched him up without taking a simple x-ray, which would have detected the brain hemorrhage that killed Paul shortly after he was discharged from the hospital.

The board heard these victim's stories, saw their pictures and listened to their families' pleas for justice. It was enough for leadership to withdraw its "no" endorsement and stay neutral on the issue because It's hard to ignore the facts when hundreds of thousands of people die every year from preventable medical mistakes.

Though a small percentage of consumer attorneys practice in the medical malpractice field, a huge number put in long hours and donated money to the cause. Although Prop. 46 failed, several things came out of the effort. First, it raised public awareness about the injustice of the cap on damages, especially how it impacts the elderly, women and children in our society. Second, over a million people voted "yes" on the proposition in a year with a record low turnout. Those numbers are important and we can't turn our backs on victims and their families who have run out of options and have no legal recourse.

While some have called our efforts to press forward futile and "delusional," the law is on our side. By limiting damages to $250,000, MICRA violates equal protection by denying a plaintiffs' right to a trial by jury. With new, younger appointees on the state Supreme Court, we have a shot at getting a review of this outdated law.

Other states have used this argument successfully, such as in Estate of McCall v. United States (2014). There, the Florida Supreme Court struck down the cap on noneconomic damages in a wrongful death medical malpractice case because it violated equal protection under the Florida constitution. In Watts v. Lester Cox Medical Centers (2012), the Missouri Supreme Court declared a state law limiting compensatory damages was unconstitutional and overruled a 20-year-old precedent limiting the right to trial by jury. And the Illinois Supreme Court declared a state law limiting noneconomic damages in med mal actions unconstitutional in Lebron v. Gottlieb Memorial Hospital (2010). While Prop. 46 may not have won over voters, constitutional rights are not subject to a popularity contest.

In addition to mounting a legal challenge, we must continue educating the public and the Legislature about the effect the caps on damages have on everyday citizens and about the importance of fairness and justice for everyone in California. It takes more than a sound bite on a TV ad to explain that the MICRA cap isn't so much about lawyers' fees, but about patient safety and equal protection under the law.

Geoff Wells is partner at Greene Broillet & Wheeler LLP specializing in personal injury, wrongful death, premise liability, motor vehicle accidents and product defect cases. He is the most recent out-going President of the Consumer Attorneys Association of Los Angeles (CAALA).