In a letter addressed to Justices of the California Supreme Court dated November 18, 2014, the consumer advocacy group Consumer Watchdog has requested that the California Supreme Court agree to review a case in which the California medical malpractice cap on noneconomic damages is challenged, advising the California Supreme Court that “[r]eview in this case is vitally necessary because the opinion of the appellate court will leave millions of Californians and their families who have suffered from medical negligence without fair compensation despite a jury’s verdict above an outdated cap on damages.”
The California statutory cap on noneconomic damages in medical malpractice cases is set forth in Civ. Code, § 3333.2, which is part of the Medical Injury Compensation Reform Act of 1975 (“MICRA”): “(a) In any action for injury against a health care provider based on professional negligence, the injured plaintiff shall be entitled to recover noneconomic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement and other nonpecuniary damage. (b) In no action shall the amount of damages for noneconomic losses exceed two hundred fifty thousand dollars ($250,000).”
In the case that Consumer Watchdog is seeking to be reviewed by the California Supreme Court, the plaintiffs, husband and wife, alleged that the defendant neurosurgeon’s failure to perform prompt surgery on the husband following a spinal cord injury that occurred on November 2, 2003 while he operated an off-road vehicle in the desert resulted in the husband sustaining an incomplete L1 injury that progressed to an irreversible injury, resulting in the husband becoming a paraplegic with no bladder, bowel, or sexual function. The wife had been awarded $1 million in noneconomic damages for her loss of consortium claim and the husband had been awarded $2,750,000 in noneconomic damages for his noneconomic damages, which the trial court reduced to $250,000 each, pursuant to section 3333.2.
The plaintiffs contended on appeal that the damages cap provided for in section 3333.2 violated their constitutional guarantees of equal protection, the right to a jury trial, and separation of powers. The Court of Appeal of the State of California Fourth Appellate District Division Two issued its unpublished decision in the case on August 22, 2014, finding that MICRA was constitutional. Hughes v. Pham CA4/2. The plaintiffs are seeking that the California Supreme Court accept their request for further review.
The Consumer Watchdog letter notes that MICRA was last reviewed for constitutionality by the California Supreme Court in 1985 (Fein v. Permanente Medical Group, 38 Cal.3d 13). The California Supreme Court stated in Fein that the 1975 damage cap “discriminates between medical malpractice victims and other tort victims, imposing its limits only in medical malpractice cases, and . . . improperly discriminates within the class of medical malpractice victims, denying a ‘complete’ recovery of damages only to those malpractice plaintiffs with noneconomic damages exceeding $250,000.” Despite such finding, the California Supreme Court upheld the cap on noneconomic damages in California medical malpractice claims as constitutional, citing the perceived “crisis” in medical malpractice insurance and healthcare as the rational basis for limiting the compensation for a lifetime of pain and suffering at the hands of negligent medical providers to $250,000.
Consumer Watchdog concluded its letter by stating that “we strongly urge the Court to grant the petition for review in this matter. Review is urgently needed to address this issue of great importance to California citizens who are the victims of medical malpractice, their families, and the taxpaying public as a whole.”
If you or a family member may have suffered injury or other substantial harm as a result of medical negligence in California or in another U.S. state, you should promptly consult with a California medical malpractice attorney or a medical malpractice attorney in your state who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.
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