Civil Rights,
Health Care & Hospital Law,
Letters
Oct. 29, 2013
Soon enough justices will challenge MICRA's vitality
Re: "Offsetting Damages in a Nonallocated Settlement," Oct. 21.
Nathaniel J. Friedman
Law Office of Nathaniel J. Friedman
8500 Wilshire Blvd Ste 910
Beverly Hills , CA 90211
Phone: (310) 277-2889
Fax: (310) 277-2136
Email: njfriedman@medlawyer.net
Southwestern Univ School of Law
Author of "Medical Malpractice in the 21st Century"
The propaganda piece, "Offsetting Damages in a Nonallocated Settlement," by Craig Roeb and Garrett Fahy (Oct. 21), is remarkable for the attitude set forth in the last sentence wherein these gentlemen have written, "courts [are] declining to indulge in efforts to undermine MICRA."
Not so fast. As recently as June, the U.S. Supreme Court issued an opinion in Shelby County v. Holder, 133 S. Ct. 2612, wherein Chief Justice John Roberts, speaking for the majority, held that the particular basis for the act in question was a formula not grounded in current conditions but rather "on 40-year-old facts having no logical foundation to the present day. ... [W]e are not ignoring the record; we are simply recognizing that it played no role in shaping the statutory formula before us today." As to the "unusual facts" that justified the 1984-1985 holdings in the MICRA cases, the state Supreme Court recognized "it is not the judiciary's function ... to reweigh the 'legislative facts' underlying a legislative enactment ... [The Legislature] could rationally conclude from the information before it that the high insurance costs in this particular area pose special problems with respect to the continued availability of adequate insurance coverage." American Bank and Trust Company v. Community Hospital, 36 Cal. 3d 359 (1984). The author of American Bank also set forth that the preamble to MICRA states: "The Legislature finds and declares that there is a major health care crisis in the State of California ... The Legislature ... finds the statutory remedy herein provided is intended to provide an adequate and reasonable remedy within the limits of what the foregoing public health and safety considerations provide, now and into the foreseeable future" (emphasis added). In other words, even the author of the MICRA cases, the late, unlamented Justice Otto Kaus and the Legislature emphasized that MICRA was a short term remedy to a "perceived problem." Who in 1975 could have foreseen the world of 2013? Perhaps a Bill Gates or a Warren Buffett, but few others. MICRA is a rotting carcass just waiting for four courageous justices to declare it unconstitutional. That day will come, sooner than later.Submit your own column for publication to Diana Bosetti
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