MICRA needs to go

As our troops were coming back from the Vietnam War, insurance company lobbyists and special interests groups saw their opportunity to get their bought and paid for politicians to pass law that would help insurance companies make more of a killing than they already were. It was 1975, the end of the Vietnam War, when the California Legislature drafted the Medical Insurance Compensation Reform Act. Gov. Jerry Brown signed it into law in September of that year, two years before I was born.

It was an unjust law from the outset that had no honest rational basis. Gov. Brown supposedly signed the bill stating that the California courts would never uphold it. As it turned out, the politically appointed judges backed the law up. Brown has admitted that MICRA was wrong, but when he became governor again he did nothing about it, and neither has a single California court. Nothing has changed since 1975 except the cost of everything, including medical malpractice insurance. That being said, increasing the cap isn't the answer. MICRA needs to go, completely. It was passed based on bundles of lies back at a time where false propaganda worked. Because of MICRA, hundreds of thousands of Californians have been deprived of their constitutional right to a jury trial and thousands of California juries have been lied to.

For those who don't know what I am talking about read California Code of Civil Procedure 3333.2 (MICRA). Let me help you understand it: If I am a health care provider and I give your child a medication the medical record says he is allergic to and then fail to give medical attention when she/he has an adverse reaction resulting in your child being killed, $250,000, is the maximum amount of civil justice your dead kid is worth and after costs and attorneys' fees that number is usually less than $150,000. This is civil justice in California. But, maybe it's not your kid. Instead, it's your stay-at-home spouse, or retired parent. I call it the Death Cap or Cap on the Value of Quality of Life Damages because if you are catastrophically injured or maimed, $250,000 is the most your loss of enjoyment of life, disfigurement, pain and suffering is worth, even if it's really bad and even if it's going to last 50 years.

Putting an end to the injustice is long overdue. We can't rely on most California politicians because they either don't care, are corrupt or otherwise are more worried about their next campaign than they are with exercising integrity and doing what's right.

The only real fix is to turn to our judiciary, but judges and justices are politically appointed, and have proven to be unreliable since the fall of Saigon. Hopefully, a hero in a black robe is somewhere out there. California just needs one willing to re-read the U.S. and California Constitutions, look at the fact that there is no rational basis for MICRA, and then have the integrity and courage to say it's unconstitutional. Then, hopefully a few more heroes in the Court of Appeal and/or California Supreme Court will have integrity and courage to do the same.

We have hard evidence which shows that (1) there is no rational basis for MICRA -- never was, actually; (2) MICRA was passed into law based on lies and fraud; (3) MICRA violates the constitution and tramples on fundamental rights of Californians in multiple ways.

California judges and justices can look at integrity, courage and decisions of other appellate and supreme courts who have invalidated damages caps that their corrupt politicians put in the law books. Judges and justices in the states of Washington, Oregon, Minnesota, New York, Massachusetts, Illinois, Arizona and Wyoming are among the states that have ruled caps unconstitutional. In the past few months, two conservative states, Oklahoma and Kansas, had hero judges throw out caps on damages. Judges in Oklahoma and Kansas believe in the Constitution, fundamental rights, access to the courts, and the full right to a jury trial. It is not clear if the state of California shares these same beliefs. The proof is in the pudding until something changes.

Jurors are sadly lied to. Imagine serving as a juror and finding out that after costs and attorneys' fees the medical negligence victim whose case you decided as a juror ends up with civil justice being less than $150,000. This is the reality of what is going on every week in this State and it's downright despicable. It's shameful that this is the California justice system.

Nobody with integrity speaking honestly can argue that any part of MICRA should remain on the law books. Research studies have shown that this law has added tens of billions of dollars to taxpayers' and policyholder health insurance costs. The only ones who have benefitted by this law are the medical malpractice insurance companies.

For those who say "victims still get their economic damages", the fact is that's just not true. The collateral source rule is abrogated when it comes to medical negligence cases. What that means is that every dollar of economic damages a medical negligence victim suffers gets discounted and offset by any health care coverage, MediCal, Medicare, or the affordable health care act.

There is very little access to the civil justice system because of this law and the medical malpractice insurers continue to celebrate this fact. It's a bad business decision for any lawyer to take these cases. But, not for the insurance defense lawyers. Their firms are big and strong, they are paid well to make any malpractice lawsuit very difficult despite how meritorious it might be. These firms all have unlimited war chests that get filled and refilled by the insurance company masters who love MICRA.

Up to this point in time, nobody has done anything about MICRA. We should all be ashamed of ourselves. 