MICRA is waiting for justices to step up to the plate

Young Nicholas Rowley's multi-paragraph letter ("Fixing MICRA: In search of a hero in a black robe," July 3) demonstrates that he is late to the dance.

Had he read this author's 2012 book, "Medical Malpractice in the 21st Century," as well as his 2015 supplement, Mr. Rowley would have been aware of the patent structural defects in MICRA, just waiting for the state Supreme Court to declare the obvious: MICRA is long since obsolete and/or unconstitutional.

The first point is the Legislature itself knew it was being had by the California Medical Association. Rather than incurring the association's wrath (and political clout), the Legislature explicitly stated that MICRA was not intended to exist in perpetuity (perhaps until colonies are founded on the moon?) but, as the author of a bitterly divided 1984 California Supreme Court wrote in American Bank v. Community Hospital, 36 Cal. 3d 359, 372 n.11, "[MICRA] is intended to exist only "into the reasonably foreseeable future."

While "reasonably foreseeable future" was not defined, certainly that was no later than 1988, when Proposition 103 was passed, providing for an elected insurance commissioner with the power to "roll back" unreasonable insurance premiums including medical malpractice premiums (see Insurance Code Section 1851). After all, weren't "skyrocketing" malpractice premiums the "justification" for MICRA?

Were that not enough, in 2013, the chief justice of the United States, with four other courageous justices joining, issued the decision in Shelby County, Alabama v. Holder, 133 S. Ct. 2612 (2013), writing explicitly that: An act of [the Legislature] imposing current burdens must be justified by current needs." (Emphasis added.) See also Mathews v. Kamala Harris, Attorney General, 7 Cal. App. 5th 334 (2017): "We are bound to accept the decision of the Supreme Court."

And of course, under the supremacy clause of the U.S. Constitution, the courts of the (sovereign) states are required to follow Supreme Court holdings.

Then, on a state court level, retired Justice Robert Mallano held, in effect, Business and Professions Code Section 6146(a) was obsolete regarding attorney fees in malpractice cases, involving minors. Gonzalez v. Chen, M.D., 197 Cal. App. 4th 881, 887 (2011).

In sum, MICRA is a rotting carcass, just waiting for four Supreme Court justices to kick in the teeth (figuratively speaking) the California Medical Association and declare MICRA obsolete and/or unconstitutional. 