Jerry Brown, Stop Punishing Victims of Medical Malpractice

10/27/2014 01:29 pm ET Updated Dec 27, 2014
FILE -  In this Nov. 7, 2012 file photo, Gov. Jerry Brown speaks in Sacramento, Calif. If Brown wins re-election in November,
FILE - In this Nov. 7, 2012 file photo, Gov. Jerry Brown speaks in Sacramento, Calif. If Brown wins re-election in November, he will be given an unprecedented second opportunity to overhaul the California Supreme Court. (AP Photo/Rich Pedroncelli, File)

On November 4, Californians will vote on Proposition 46's provision to adjust for inflation the unconscionable cap on pain and suffering, known as the Medical Injury Compensation Reform Act (MICRA), which Governor Jerry Brown signed into law in 1975.

At least 10,000 Californians perish every year, along with many more aggravated injuries and preventable illnesses, due to medical malpractice. This toll does not even include fatalities and other casualties brought on by hospital-induced infections. Compensation for such "non-economic" injuries is now capped at $250,000 for each affected person due to MICRA. Adjusted for inflation, $250,000 in 1975 dollars is worth well under $100,000 today!

MICRA also limits the legal rights of victims of incompetent or negligent medical care and makes it difficult to hold negligent doctors and hospitals accountable for their actions.

There is no doubt that Governor Brown is aware of the impact of MICRA's cap on damages for the pain and suffering of victims of medical malpractice. He went so far as to openly disavow his prior position when its provisions were being considered for the Clinton Health Care Plan many years later.

He wrote in a June 1993 statement:

"We have learned a lot about MICRA and the insurance industry in the seventeen years since MICRA was enacted. We have witnessed yet another insurance crisis, and found that insurance company avarice, not utilization of the legal system by injured consumers, was responsible for excessive premiums. Saddest of all, MICRA has revealed itself to have an arbitrary and cruel effect upon the victims of malpractice. It has not lowered health care costs, only enriched insurers and placed negligent or incompetent physicians outside the reach of judicial accountability. For these reasons, MICRA cannot and should not be a model for national legislation."

Could it be said any better than those forgotten words by Jerry Brown himself?

A pain and suffering cap is most harmful to those victims of serious injuries who do not have wage loss or other explicit economic damages. Thus, children, the elderly, stay-at-home moms and others pay the highest price for what Governor Brown and the California legislature did in the mid-Seventies. MICRA also arbitrarily ties the hands of judges and juries who are the only ones who actually see, hear and evaluate the evidence of malpractice cases in the court of law.

At the time Governor Brown signed MICRA, the doctors, hospital and insurance lobbies were clamoring for this cap. They were so aggressively pressuring the governor to sign the bill that he decided not to resist, thinking that the California Supreme Court would declare MICRA unconstitutional.

Instead, MICRA survived and became a bad example for other state legislatures to emulate. "Well, if Jerry Brown and liberal California did it..." became the public argument for commercial interests elsewhere in the United States.

According to a just-released Public Citizen report, despite a slight uptick in the last year, medical malpractice payments nationally are at an historic low. Meanwhile, estimates of "avoidable adverse events" in hospitals -- harms that result from the care received that result in injury or death and are unrelated to the original ailment of the patient -- are rising.

The report cites a 2013 Journal of Patient Safety study, which estimated the number of "premature" hospital deaths due to error to be 400,000 per year!

Passing Prop 46 would adjust the buying power to $1.1 million for a lifetime of pain and suffering. It only makes sense -- adjusted for inflation; the purchasing power of $250,000 in 1975 is the equivalent of $1.1 million today. Very modest proposal: It would also institute stringent drug and alcohol testing of doctors in California, which is another factor in rampant medical negligence.

For some unexplained reason, Governor Brown now seemingly fears the health industry lobby more than he possesses the moral courage to correct a terrible injustice that he played a part in causing. This has greatly harmed some of the most innocent and vulnerable Californians. He could have easily rectified this situation early in his third term with a large Democratic majority in the state legislature but chose not to act.

Now is the time to catch up with 1975, Governor Brown. All eyes are on California voters when it comes to addressing the ongoing crisis of medical malpractice in the United States. Whereas MICRA served as a bad example to the nation, let us now reverse the tide and set out on a positive path when it comes to deadly and destructive medical negligence and incompetency.

Time is of the essence in this matter; there is only a week until Election Day.