Campaigner for hike in non-economic damages cap sets confrontational tone

SAN FRANCISCO -- In an appearance that could set the tone for next year's initiative campaign, attorney Nicholas C. Rowley went into Assemblyman David Chiu's San Francisco district on Friday and called him out for his support of the Medical Insurance Compensation Reform Act.

In an emailed response later, Chiu defended his close work with Consumer Attorneys of California Convention and also his concerns about how high medical malpractice verdicts can keep doctors from practicing in the state.

The group's outgoing president, Mike Arias, also issued a statement, expressing continued opposition to damage caps, but saying the organization opposes personal attacks on lawmakers.

Rowley is leading an effort known as FIPA, for the Fairness for Injured Patients Act. It would update the non-economic damages cap under the 1975 law known as MICRA, raising it from the current $250,000 to more than $1.1 million and make other key changes long sought by trial attorneys.

The attorney at Carpenter, Zuckerman & Rowley in Beverley Hills was appearing on a panel on "Surviving MICRA" at the 2019 Consumer Attorneys of California Convention. Other panelists spoke about ways to circumvent the law by getting their claims declared to be outside the scope of the existing law.

But as the panel's moderator, Chichak & Martel attorney Amy R. Martel, put it, "The best way to get around MICRA is to get rid of it."

Judging by his presentation, Rowley thinks the best way to get rid of the law is a take-no-prisoners approach. Speaking at the Palace Hotel in the heart of Chiu's home turf, Rowley posted a tweet from his ally in the ballot initiative campaign, Jamie Court of Consumer Watchdog.

Under a picture of Chiu appearing at a board meeting Thursday night with Mike Arias, the outgoing president of the attorneys organization, the display showed Court's Facebook post saying, "Politicians that support medical malpractice caps from 1975 shouldn't deliver resolutions at trial lawyer convention."

Chiu, a Democrat and an attorney, was invited by the consumer attorneys group to present Arias a legislative resolution marking his year as president.

In his comment issued after Rowley spoke, Arias said the attorneys group "has always fought against efforts to cap damages or limit damages to victims of wrongful conducts such as medical malpractice. But we do not condone personal attacks against lawmakers. Assembly Member Chiu has been a strong supporter of civil justice and the rights of consumers."

Rowley's digs at Chiu included the statement, "I've heard David Chiu has a good heart and a good mind. Maybe he's just a bit uneducated. Maybe he's been propagandized and fed a bunch of bullshit and somehow he's believed it. Or maybe there's some money, it turns out the CMA is supporting him."

Records from the Secretary of State's office confirm Chiu has received donations from the California Medical Association and several other medical trade groups this year.

"In my time in the Legislature, I have been honored to work closely with the Consumer Attorneys on many fronts including holding lead paint companies accountable and bringing justice to those whose civil rights have been violated," Chiu said in an emailed response to Rowley's comments." While we agree the vast majority of the time, as the son of an immigrant doctor who chose not to move our family to California due to medical malpractice rates, I've shared the concerns of community clinics, Planned Parenthood and others about the upcoming measure's impact on health access for under served communities."

Rowley went on to note the "apples and oranges" differences between his proposed initiative and Proposition 46, a 2014 ballot measure meant to raise the cap which was defeated by voters. He said Proposition 46 was a badly-conceived initiative sold on a promise of drug testing doctors that was defeated in an election with historically low turnout. The 2020 election, he added, promises to have one of the highest turnouts in recent history.

There is already a face of the campaign: a little girl name Mia Moreno who has cerebral palsy due to alleged medical negligence, whose picture will appear on campaign material. Rowley said he will also focus on the age of the cap -- passed the year the Vietnam War ended -- and his argument that "progressive" California has the law while far more conservative states like Iowa don't.

Rowley's initiative also may not suffer the 5-1 cash disadvantage faced by Proposition 46 supporters. Rowley has pledged to spend millions of dollars of his own money to back the initiative.

"We are trial lawyers," Rowley said, shortly before receiving rousing applause from the audience. "We get right back up. I will file this initiative every election until this law is changed."

Speaking before Rowley, other panelists laid out more traditional ways to circumvent the damages cap. Steven A. Heimberg, whom Martel called a "unicorn" due the fact he is both a doctor and a lawyer, said a key way to do this is to argue an injury did not occur in the normal scope of medical practice.

This can occur in instances where a medical professional engages in criminal acts, such as sexually assaulting a patient, or in acts that are clearly irresponsible, such as letting an unqualified person perform surgeries when the patients think they are getting a real surgeon.

"I don't think anyone was licensed to rape their patients or sell body parts," said the attorney at Hemberg Barr LLP in Los Angeles.