California has key role in national debate over liability for damages from coronavirus

Each time he has proposed a national budget, President Donald Trump has included a national version of California's law limiting non-economic medical malpractice damages to $250,000. But Democrats, and some Republicans, have turned back the idea each time.

This week U.S. Senate Majority Leader Mitch McConnell, R-Kentucky, joined the longstanding debate, where California has played a key role. McConnell warned of a coming "lawsuit pandemic" and said he wants liability protection for businesses, health insurers and others. He also said he would be open to providing more aid to businesses and states dealing with the coronavirus.

The 1975 California law -- the Medical Injury Compensation Reform Act, better known as MICRA -- faces a challenge at the ballot box in November. The Fairness for Injured Patients Act proposition, called FIPA by its proponents, is carried by a coalition of plaintiffs' attorneys and consumer advocates. It would retroactively index the 45-year-old cap to inflation, raising it to about $1.2 million with regular increases to follow.

The California Medical Association led a $58 million effort that persuaded votes to turn back a similar ballot measure, 2014's Proposition 46. The group sent Gov. Gavin Newsom a letter March 23 asking him to suspend several sections of the state Health, Civil and Government codes for the duration of his emergency order. These mainly have to do with health provider licensing and liability.

In particular, the group asked Newsom to waive the "willful act or omission" exception to the state law that declares: In an emergency, health care workers "shall have no liability for any injury sustained by any person by reason of those services, regardless of how or under what circumstances or by what cause those injuries are sustained."

The key changes have yet to show up in the nearly 60 executive orders the governor has issued since the start of the crisis. The medical association did not reply to an email seeking comment. A spokesperson for Newsom declined to comment.

But the letters have continued coming, from a coalition led by the association and other medical organizations. For instance, the American Physicians Group brought up the code section again in an April 16 letter to the governor.

"The current law on professional liability is too broad for the current conditions," read the letter signed by the leaders of several health care organizations. "The medical professionals in our member organizations are providing care in the best manner that they can. ... Their decisions are hampered by limitations and problems imposed by other agencies. They are subject to shortages of equipment, medication, beds and lack of well-founded protocols on how to treat this virus."

The Consumer Attorneys of California and a coalition of other groups sent their own letter Tuesday. It warned such a change "would drastically lower the legal standards of care for medical health professionals and private institutions beyond the already-relaxed standards that exist for COVID-19-related negligence."

Such limitations currently faced by medical professionals are real, conceded Nicholas C. Rowley, a plaintiff's attorney who is one of the main backers of the proposed initiative. But he added there are unlikely to be many credible medical negligence lawsuits coming out of the pandemic anyway.

"It truly is a pandemic where there is no set standardized testing that is reliable," said the partner with Carpenter Zuckerman & Rowley in Beverly Hills. "There is no set treatment regimen that works. This truly is a virus we don't know enough about right now. I don't think that health care providers need any protection because there's not a lawyer out there in his or her right mind who is going to pursue a lawsuit."

But an Assembly Budget Committee hearing on Monday made it clear some lawmakers are still thinking about providing new liability protections and suspending regulations for the duration of the crisis. Held with perhaps two dozen legislators and observers spread around a room capable of holding hundreds, lawmakers heard increasingly dire news about the worsening state economic situation.

Assemblymen Jim Wood, D-Santa Rosa, and Vince Fong, R-Bakersfield, expressed their fears the state could begin to lose large numbers of small businesses. Wood, a dentist, said he has been in touch with numerous health care providers who say there are within a few weeks of not being able to make payroll.

"With so many businesses and industries struggling to stay afloat, would the administration be willing to temporarily suspend any new non-COVID related regulations in order to give businesses an opportunity to rebound?" Fong asked Newsom's representatives.

Vivek Viswanathan, chief deputy director for budget at the Department of Finance, replied that Newsom was not considering blanket suspension of regulations but added they are regularly reassessing the situation.