Medical malpractice damage caps block access to justice in California

In 1975, in response to a perceived crisis in the medical malpractice insurance market, California became the first state in the country to pass a non-economic damages cap in medical malpractice lawsuits. The Medical Injury and Compensation Reform Act, or MICRA, capped compensation for pain and suffering at $250,000, with no built-in provision for inflation. Economic damages remained unlimited. Over the past four decades, the value of the original cap has depreciated to approximately $55,000. Meanwhile, 30 other states have passed their own version of a damages cap, and in June the U.S. House of Representatives passed a bill to establish a national cap of $250,000, modeled after MICRA. In California, the high cost of bringing a medical malpractice case to trial and the low likelihood of victory means that lawyers are increasingly reluctant to take on a case unless the plaintiff can claim high economic damages. In most cases, $250,000 in non-economic damages alone is not enough for a malpractice attorney to justify taking on the time, expense and risk of a case. As a result, MICRA’s cap disproportionately affects plaintiffs who depend on non-economic damages for the majority or entirety of their settlement—children, women, the poor, the elderly and the most severely injured. Today, California’s $250,000 cap remains the lowest in the country, along with Texas, Montana and Iowa. Recent efforts to raise California’s non-economic damages cap to account for inflation, such as Proposition 46 in 2014, have failed. However, in the face of mounting research suggesting an epidemic of preventable medical errors that kill in excess of 250,000 Americans each year, the medical community is beginning to consider alternative models to promote patient safety.