Plaintiffs’ attorney hopes Trump resistance will also sign on to MICRA changes

SACRAMENTO — When Nicholas C. Rowley accepted the Consumer Attorneys Association of Los Angeles’ 2018 Trial Lawyer of the Year Award in January, he told the story of a young girl he represented who he said was left unable to talk, eat or care for herself due to medical malpractice.

“Under the law here in California that was passed in 1975, all she is entitled to for her pain, suffering, loss of enjoyment of life is $250,000,” Rowley told the audience.

Then the partner at Beverly Hills-based Carpenter Zuckerman & Rowley LLP added that the Medical Injury Compensation Reform Act has “got to go, and the way we’re going to do it is we’re going to get it back on the ballot.”

In the audience was Jamie Court, longtime president of Consumer Watchdog. Three months later, both men say a 2020 ballot initiative is well underway to overturn the law limiting noneconomic damages in medical malpractice cases. Court said his group’s main role so far has been to connect Rowley with medical malpractice victims throughout the state who are ready to tell their stories.

Rowley said he has been talking to political law firms and will have proposed ballot language within weeks.

But opponents of such a move noted that Californians already defeated a previous attempt to roll back medical malpractice damages, defeating Proposition 46 by a 2-1 vote in 2014.

“Voters realized that changes to MICRA would ultimately increase costs and decrease access to health care, which is why they rejected the flawed proposition,” said Lisa Maas, executive director of Californians Allied for Patient Protection, in an emailed statement Friday. “At a time of continued political uncertainty about the future of health care reform, MICRA provides stability and offers an assurance that Californians will continue having access to doctors, nurses, hospitals and community clinics.”

Court was one of the players involved in Proposition 46, which also had high profile support from Sen. Dianne Feinstein, consumer advocate Erin Brockovich, and the Consumer Attorneys of California.

Yet insurers and medical organizations buried it under $58 million in opposition spending. Supporters of the failed Proposition 46 spent more than $12 million. The new effort does not have ballot language or a fundraising committee. But the core idea is the same: retroactively adjust the $250,000 cap for inflation, raising it to nearly $1.2 million, and have it automatically adjust going forward.

Reached Friday, Rowley said the new effort would also have differences. For instance, Proposition 46 contained a cap on attorney fees, but the new initiative won’t.

The current system encourages attorneys to seek a quick payout through a settlement but discourages them from actually litigating cases, he said. His hoped-for language would allow judges discretion over fees, including lowering them when the amount of work doesn’t justify them.

Rowley said his campaign would show many states without damages caps have lower rates for malpractice insurance.

Proposition 46 would have also placed new drug testing and reporting requirements on doctors. Opponents seized on this aspect, saying it raised fears about doctors in a bait-and-switch tactic.

Some of MICRA’s biggest critics say they are aware of Rowley’s work but not actively involved at this point.

“We just heard about this recently,” the consumer attorneys group communications director, Eric Bailey, said of Rowley’s campaign. “We’ve had no role in the development of this possible initiative. We will be monitoring this effort.”

“I’ll put my own money in if I have to,” Rowley said, adding that his firm is prepared to do some of the legal work involved in qualifying the initiative.

In his speech, Rowley also said changes to the malpractice damages limit law might find a more willing audience in Gov. Gavin Newsom. Predecessor Jerry Brown, who signed the original law, showed little inclination to revisit it.