Efficient And Effective Business Litigation

Ballot measure could gut California’s malpractice cap

On Behalf of | Apr 20, 2022 | Health Care Law |

For decades, California has had a strict cap on the amount of damages an injured patient can receive after a medical malpractice claim. A ballot measure, called the Fairness for Injured Patients Act, may change that if it gets passed by voters later this year.

As it stands and has stood for decades, no matter how much a jury awards, the most compensation an injured patient can get for so-called quality of life damages after medical malpractice, like pain and suffering, is $250,000.

A patient can still collect lost wages and the cost of additional medical and rehabilitation expenses, and that is not expected to change. However, existing California law makes large shock judgments harder to come by in this state, whereas the pending ballot measure may open the door to shock judgments.

The ballot measure proposes to amend California law to increase the existing cap significantly from the $250,000 that has been in place since the 1970s. The cap would also be annually adjusted for inflation going forward.

Also, the ballot measure would allow juries to know about the damages cap and also override it if they found that the medical malpractice caused a “catastrophic injury”.

The jury would be allowed to hear from victims and their families about how the medical injury impacted a victim’s quality of life.

Another important feature of the measure is that it allows plaintiff’s malpractice attorneys to claim reasonable attorney fees without regard to any maximum dollar amount.

Doctors, insurance companies are concerned about this ballot measure

Insurance companies and doctors have both expressed concerns about the scope of this ballot measure. In a California Medical Association op-ed, one doctor suggested that the measure’s exceptions basically make the existing cap meaningless.

Certainly, the measure if passed would increase the exposure of medical malpractice insurance companies which do business in this state, and they would have to adjust their defense strategies accordingly.