The Golden Standard? California as a Model for National Medical Malpractice Tort Reform
Richard E. Custin
University of San Diego- School of Business Administration
January 1, 2012
Journal of Law, Business & Ethics, 18 JLBUSETH 91, 2012
With the national focus on medical malpractice tort reform, California is regarded as the “model for medical liability reform.” But for injured patients, California is a less than hospitable legal forum. In 1975, the California legislature passed the Medical Injury Compensation Reform Act (MICRA), which limits non-economic damages and attorney fees, abrogates the collateral source rule, requires 90 day notice to physicians of a claim, and promotes annuity like periodic payments to injured plaintiffs. MICRA legislation has remained unchanged since 1975 and -- most importantly -- the limitation on non-economic damages has never been indexed for inflation or otherwise adjusted. This assault on injured parties has been further compounded by a wave of physicians refusing to treat patients absent “consent” to arbitration of all claims made by a patient. The result is a California model that would serve as the ultimate patient injustice were it adopted nationwide. Attempts are now underway to preempt state medical malpractice laws and adopt a national standard that is strikingly similar to California's legislation. In this paper, we review California's limit on medical malpractice damages and enforcement of mandatory arbitration, focusing on its policy effects on patient recourse and its influence on the recent Help Efficient, Accessible, Low-Cost, Timely Healthcare (HEALTH) Act of 2011.
Number of Pages in PDF File: 22
Keywords: MICRA, California, medical malpractice, HEALTH, arbitration, damages
JEL Classification: K13Accepted Paper Series
Date posted: March 13, 2013 ; Last revised: March 15, 2013
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