[vc_row][vc_column][vc_column_text]Overview: Changes to medical malpractice lawsuits caps has qualified for the 2022 California ballot; patients could get more money from medical malpractice lawsuits.[/vc_column_text][vc_empty_space height=”22px”][vc_column_text]

• History of the cap and how it continues to affect medical malpractice cases in California

• Non-economic damages: What it is, how it’s calculated, and more

• Details on the 2022 ballot initiative to increase California’s $250,000 cap
• How to maximize medical malpractice recovery even with the damage cap

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Though there’s no limit to how much pain and suffering a person can endure, California is still on the medical malpractice damage cap train. The damage cap has been a controversial law that many states have banned, yet recent news for medical malpractice caps in California reveals that California justices have been urged to adopt a cap on med mal damages.

Many courts have ruled damage caps unconstitutional because it limits the amount of money an injured victim could receive for his or her losses. What exactly does this mean for Californians?

A damage cap limits how much Californians can recover if they’re the victim of medical malpractice — even if the at-fault party owes a substantial amount in damage compensation. This cap applies only to non-economic damages in medical malpractice claims. The maximum amount of money that an individual plaintiff can currently receive: $250,000.

This begs the question: If there’s no limit to how much pain and suffering a person can endure, why is there a limit on damages awarded when the pain and suffering is not their fault?[/vc_column_text][vc_empty_space height=”22px”][vc_column_text]

History of the cap and how it continues to affect medical malpractice cases in California

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Since 1975, California has capped damages for pain and suffering in medical malpractice lawsuits at $250,000. Signed into law by Gov. Jerry Brown, the cap was meant to deter frivolous lawsuits against doctors and hospitals while also preserving patients’ right to seek damages in court. But the cap has not changed in 45 years, as consumer advocates have tried for years to change the cap without success.

Voters soundly defeated a similar proposal in 2014. But that initiative had multiple components, including provisions to require regular drug testing for doctors and background checks for patients and prescription drug history before prescribing certain medications.

The new initiative doesn’t include those things and continues to adversely affect medical malpractice cases.

Related article(s): Proposal to Raise Malpractice Caps Qualifies for 2022 Ballot

An article published on Law360 earlier this year spotlighted a case of a mother who had a $4.25 million medical malpractice award that was slashed to $250,000. This was based on — you guessed it — California’s cap on pain-and-suffering damages.

In this case, the pursuant asked the state’s high court to carve out an exception to the rule, saying the cap shouldn’t apply to physician assistants providing treatment without a doctor’s direct supervision.

Remember that we mentioned earlier that this cap applies only to non-economic damages in medical malpractice claims. What does this mean?

Related article(s): Calif. Justices Urged To Adopt Med Mal Damages Cap Outlier[/vc_column_text][vc_empty_space height=”22px”][vc_column_text]

Non-economic damages: What it is, how it’s calculated, and more

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Non-economic damages are those that do not necessarily have a financial impact on the victim. They can include mental, emotional and other intangible damages, including lost quality of life, loss of consortium, emotional distress, mental anguish, grief, humiliation, depression, anxiety, and more.

Any loss that a victim incurred due to medical malpractice that did not affect them financially could qualify as a non-economic damage. Keep in mind that California’s damage cap has no bearing on economic losses such as medical bills and lost wages.

California courts calculate non-economic damages in many ways. For example, a jury might listen to the testimony of the victim and their family members in attesting to how much the incident impacted them mentally or emotionally. The jury might also take into account the opinions of experts, including physicians and psychologists.

If passed, the initiative would enable judges and jurors to decide that compensation above $250,000 is appropriate in certain cases of catastrophic injury or death, and require juries to be informed about the existence of the cap.

These damages could be awarded for catastrophic injuries such as death, permanent disfigurement or permanent disability, among others. This could make a huge difference for survivors of medical malpractice and their loved ones.

Related article(s): What Is The Cap On Medical Malpractice In California?[/vc_column_text][vc_empty_space height=”22px”][vc_column_text]

Details on the 2022 ballot initiative to increase California’s $250,000 cap

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The full title of the ballot is “Adjust Limitations in Medical Negligence Cases. Initiative Statute.” Proponents of a measure to change California’s medical malpractice cap recently announced that they have reportedly collected 900,000 signatures, enough to qualify the initiative for the November 2022 ballot.

An article published on Ballotpedia addresses changes to California’s medical malpractice lawsuits caps in detail.

• Voting “yes” supports this ballot initiative to increase California’s $250,000 cap on non-economic damages in medical malpractice lawsuits based on changes in inflation since 1975. This allows judges and juries to award damages above the cap for catastrophic injuries.

• Voting “no” opposes this ballot initiative, therefore keeping California’s cap on non-economic damages in medical malpractice lawsuits at $250,000 regardless of how catastrophic the injuries.

Related article(s): California Changes to Medical Malpractice Lawsuits Cap Initiative (2022)

Who is behind the campaigns surrounding the ballot initiative?

The Fairness for Injured Patients Act Coalition is leading the campaign in support of the ballot initiative. Through March 31, 2021, the campaign received $4.80 million, including $3.66 million from trial lawyer Nicolas Rowley and $500,000 from Trial Lawyers for Justice.

Californians to Protect Patients and Contain Health Care Costs is leading the campaign in opposition to the ballot initiative. Through March 31, 2021, the campaign received $8.93 million, including $1.75 million from Mutual Protection Trust and $1.15 million from The Doctors Company.

Process in California

In California, the number of signatures required for an initiated state statute is equal to 5 percent of the votes cast in the preceding gubernatorial election.

Petitions are allowed to circulate for 180 days from the date the attorney general prepares the petition language. Signatures need to be certified at least 131 days before the general election. As the verification process can take multiple months, the secretary of state provides suggested deadlines for ballot initiatives.

The requirements to get initiated state statutes certified for the 2022 ballot:

• Signatures: 623,212 valid signatures are required.

• Deadline: The deadline for signature verification is 131 days before the general election, which is around June 30, 2022. However, the process of verifying signatures can take multiple months and proponents are reccomended to file signatures at least two months before the verification deadline.

Signatures are first filed with local election officials, who determine the total number of signatures submitted.

• If the total number is equal to at least 100 percent of the required signatures, then local election officials perform a random check of signatures submitted in their counties.

• If the random sample estimates that more than 110 percent of the required number of signatures are valid, the initiative is eligible for the ballot.

• If the random sample estimates that between 95 and 110 percent of the required number of signatures are valid, a full check of signatures is done to determine the total number of valid signatures.

• If less than 95 percent are estimated to be valid, the initiative does not make the ballot.

What happens if the initiative is approved?

If the initiative is approved, it would raise the current cap of the non-economic damages in lawsuits for medical malpractice to $1.2 million. Furthermore, the limit amount would then be increased annually based on the inflation rate.

It also raises the limit of the fees received by the lawyers who are representing injured persons in lawsuits for medical malpractice. If this is passed, attorneys can collect fees that also factor in the inflation rate.

This petition greatly affects the fiscal position, too. If approved, it would effectively increase the health care costs for both the local government and state. By removing or raising the limits on the non-economic damages incurred in malpractice lawsuits, the expenditure would then rise the cost from tens of millions of dollars annually to hundreds of millions dollars.[/vc_column_text][vc_empty_space height=”22px”][vc_column_text]

How to maximize medical malpractice recovery even with the damage cap

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You may still be able to maximize your financial recovery during a California medical malpractice claim by hiring an attorney — specifically, a California based attorney who specializes in both personal injury and medical malpractice

Such professionals will know how to obtain the best possible results for your claim despite a damage cap through aggressive negotiations, injury documentation, and other critical actions.

Tips to maximize your recovery

• Do your best to document your injury and the act of alleged malpractice.

• See a different doctor.

• Keep copies of your medical records.

• Take photographs of your injuries.

Take all evidence and documentation you have acquired to a medical malpractice lawyer near you. A lawyer may be able to help you obtain full and fair compensation for your economic damages, as well as recovery for your non-economic damages up to the state’s damage cap, depending on your case.

Contact Raynes | Erickson today.

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