By Dan Walters
One of the many contentious issues in the national health care debate is something that began 34 years ago in California when Jerry Brown, in the first year of his first governorship, signed legislation imposing a $250,000 limit on pain and suffering damages in medical malpractice cases.
The version of a national health care bill that Speaker Nancy Pelosi pushed through the House contains a provision that would push – but not quite compel – California and other states with malpractice damage caps to repeal them.
A little history: During the mid-1970s, insurance premiums for malpractice insurance skyrocketed in response to some big damage judgments. They rose so high that many doctors threatened to leave the state, or abandon specialized practices, particularly obstetrics. At one point, doctors' wives staged a sleep-in protest in Brown's outer office, albeit with the fashionably dressed demonstrators sleeping in down sleeping bags and noshing on catered meals.
Brown and the Legislature responded with the Medical Injury Compensation Reform Act (MICRA), imposing the $250,000 limit on "noneconomic" damages, which had been the form of the big malpractice verdicts, despite opposition from lawyers who represented plaintiffs in the personal injury suits and collected percentages of the damages as their fees.
MICRA's enactment had three effects: materially lowering malpractice insurance costs, encouraging 30-plus states to enact limits of their own, and igniting a decades-long war in the California Legislature between trial lawyers and medical care providers, backed by insurers.
The lawyers have made several high-powered efforts to repeal or modify the cap in California, contending that injured patients were being denied fair compensation. But they failed even when their bills were carried by speakers of the state Assembly.
The law, however, has been a full-employment act for lobbyists for rival factions and has generated many millions of dollars in campaign contributions.
Advocates of the cap contend that if President Barack Obama and Congress are serious about reining in medical costs, they'll make it part of national health care. The Congressional Budget Office, in fact, says such a cap would save $54 billion in health care costs over a decade, and other estimates are higher.
Obama has been noncommittal, but Pelosi and other Democratic leaders of Congress, as a gesture toward the national trial lawyer lobby, included a provision in their bill that would give "incentive payments" to states that establish a "fair resolution" process for malpractice claims but only if a state "does not limit attorneys' fees or impose caps on damages."
It's likely to be a major issue when House and Senate leaders try to iron out a compromise bill, and if it survives, Brown, who aspires to return to the governorship in 2010, may have to decide whether the cap he supported in 1975 will be repealed.