Lawyer behind initiative to raise cap on medical malpractice damages sues to overturn the limit

Beverly Hills attorney Nicholas C. Rowley, who is promoting a November ballot initiative to raise the $250,000 cap on noneconomic damages in medical malpractice cases, has filed a court petition to remove the limit so he can go forward with a suit on behalf of his client, a former boxer.

Rowley said it isn’t economically feasible to move forward with the lawsuit on behalf of former boxer Shane “Sugar” Mosely because of the Medical Injury Compensation Reform Act of 1975 and statutory limits on attorney fees.

His firm, Carpenter, Zuckerman & Rowley, said it would need $200,000 to litigate the case, and if successful, would only net $20,000 in noneconomic damages after applying statutory fees calculations.

The petition for declaratory relief, filed April 1 in Los Angeles County Superior Court against state Attorney General Xavier Becerra, seeks to change the part of the law which caps pain and suffering damages.

This is the seventh such declaratory relief action his firm has filed, he said.

The office of the attorney general did not respond to a request for comment.

Medical care providers in California, led by the California Medical Association, have defended the law and argued lifting the cap would raise health insurance costs.

Californians Allied for Patient Protection, a consortium of 800 organizations representing the medical community and insurers, was part of a $60 million effort to defeat a similar measure promoted by Rowley in 2014, which failed.

“This measure would significantly drive up the cost of health care and reduce access for some of California’s most vulnerable patients,” said a statement sent Monday by the consortium. “That’s why dozens of clinics and community health centers have joined in opposition of the measure before it has even qualified. This is a time when we need to ensure patients are having affordable access to the care they need, not raising prices and limiting access.”

Jamie Court, the president of Consumer Watchdog who is spearheading the ballot initiative with Rowley, said enough ballot signatures have been attained, but given the current climate, all is on hold.

“It is hard to have a debate on this. The suffering of patients like Mosley and others are indisputable. When the time comes the public will have open ears for it but everybody has been focused on something else,” said Court.

Rowley said his client claims he will never box again due to an arthroscopic procedure that left him with a severe infection. In 2018, he sued a group of defendants, including surgeon Gary Brazina and Marina Del Rey Hospital with the agreement Rowley’s firm would take the case pro bono if Mosely paid for costs, Rowley said. But now Mosley said he cannot afford the expenses as a result of the law coupled with the economic strain due to the pandemic, according to the declaration, Rowley said.

“The limitation on noneconomic damages, which has not been adjusted since 1975, and the cap on attorneys’ fees, has deprived plaintiff Shane Mosley Sr. of the ability to obtain legal redress for the medical negligence suffered,” according to the petition.

Rowley went on to argue that plaintiffs’ attorneys such as him must choose between making little money or abandoning cases because the non-economic damages cap isn’t enough to compete financially with defendants’ attorneys.

“Only medical malpractice plaintiffs — not defendants — have caps imposed on their litigation expenditures. Knowing that the plaintiffs necessarily need to match the defendants’ experts’ at least one-for-one at trial, and therefore are in an arms race of matching costs, medical malpractice defendants will incur costs approaching or even exceeding the $250,000 maximum judgment knowing that the plaintiffs will be forced to spend more than the plaintiffs can legally recover and will therefore be forced to abandon an otherwise meritorious action,” said Rowley.