Tag Archives: litigation

Your Courts Are Centers of Innovation: MICRA and Gideon

I missed this a couple of weeks ago, but the fact that the state will not assist litigants in civil case find legal representation bears pointing out. California has always been an innovator on legal practice, and in this case, in a good way.

Although some analysts worry that it could swell state court dockets or eat up resources better spent on other needs of the poor, the pilot project that won bipartisan endorsement in the state Assembly will be financed by a $10 increase in court fees for prevailing parties.

Anybody confronted with criminal charges has a constitutional right to an attorney, as set out in the landmark Supreme Court decision in Gideon vs. Wainwright in 1963. But such a right does not apply in civil court, and the majority of citizens fighting what can be life-altering civil actions now attempt to handle their cases without professional guidance.

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“How ironic that you can be arrested for stealing a small amount of food — a box of Twinkies from a convenience store — and you’re entitled to counsel. But if your house is on the line, or your child is on the line, or you’re being abused in a domestic relationship, you don’t have the same right to counsel,” said Assemblyman Mike Feuer, the Los Angeles Democrat who sponsored the bill. (LAT 10/17/09)

We’re talking about 4 million litigants each year. 4 million people trying to retain custody of their children, or trying to fight an unlawful eviction. The number of unlawful evictions that are carried out simply because the tenant couldn’t find free representation alone boggles the mind.  Despite recent efforts to make the court system more friendly, let’s face it, courts are intimidating. Going in without an attorney who knows how these things work can be all that much more scary for people in a tough position.

This is really an outstanding bill by Mike Feuer, and hopefully it will be expanded throughout the state, and eventually to the nation. For too long, the rich have had a huge advantage over those without the means. Court cases should be decided based upon the facts, not the fact that one party couldn’t hire an attorney.

On the flip side of innovation, we have the fact that California’s courts are hamstrung by the Medical Injury Compensation Reform Act of 1975. Way back then, the state set the limit for non-economic damages at $250,000. A substantial sum of money at the time, the equivalent of about $1million after adjusting for infaltion, it’s a far less hefty sum today. In fact, even Mississippi has a higher limit at $500,000. So the saying goes if you run somebody over with your car, make sure you finished the job, it’ll be cheaper. Kill a small child or a retired person, and the family will get only that sum of money. No matter how egregious the medical malpractice, it’s limited to $250,000.  

And the cap is working. Very well. So well that it not only eliminates the silly claims, but the legitimate ones as well. Adjusted for inflation, the total 2008 nationwide sum of $3.6 billion is the second lowest on record.

While the insurance companies will tell you how doctors are suffering, and the California Medical Association, cries crocodile tears, it turns out the reason for the rising costs of insurance can’t be pegged on rising medical malpractice claims.  Sure, in other states, you can make a plausible argument to tie malpractice to increasing verdicts. But not in California since 1975. MICRA needs reform if we want one of the only working mechanisms to protect medical consumers to actually work. This is one innovation that needs repair.


Tort Deform is Not a Solution, It Is a Tragedy

In President Obama’s speech, he threw a bone to the Right. Basically, he said that hew would be willing to follow up on some of W’s plans for experimental programs of limiting malpractice claims and adjusting insurance.  Since then (and before) he has said that he doesn’t think it will be a significant controller of costs.  And on that he’s right.

MedMal Line Graph

One of the principal myths surrounding medical malpractice is its effect on overall health care costs. Medical malpractice is actually a tiny percentage of health care costs, in part because medical malpractice claims are far less frequent than many people believe.

According to the Congressional Budget Office, malpractice costs amount to “less than 2 percent of overall health care spending. Thus, even a reduction of 25 percent to 30 percent in malpractice costs would lower health care costs by only about 0.4 percent to 0.5 percent, and the likely effect on health insurance premiums would be comparably small.”

MedMal Pie ChartI’ll go farther than the AAJ. Not only is it not medical malpractice law that is raising health care costs, it has actually far less than the CBO estimates.  You can see that costs are actually somewhat decreasing from the line chart up top (full PDF where I got these here), and the pie chart shows that medical malpractice premiums account for less than 1% of health care costs.

There are two reasons why Republicans love this stuff, neither of which have anything to do with the doctors “practicing their love“.  They are simply allies of convenience.  First, attorneys who represent victims of malpractice have traditionally been solid Democrats, and not just the voting kind, but also the giving great sums of money kind.  The Texas Democratic Party had become reliant on this money when Bush became governor by defeating Ann Richards. Trial Attorneys had been good friends of Richards, so taking on the trial attorneys in Texas made a great deal of sense for Bush. He was picking a fight with a group that had opposed him.

The other reason? Malpractice is bad for the bottom line of some big Republican donors. The American Medical Association has long aligned themselves with the Republicans, as have the corporations affected by tort law in general.  Medical malpractice reform has to be considered in the more general frame of tort reform

But as they say, as goes California, so goes the nation. And California led the nation in tort deform  Back in the 1970s, California enacted a bunch of legislation capping recoveries and generally limiting tort recoveries.  It was a defendant’s dream, and the big corporations who typically get sued a lot were right behind it pushing it along.

In the med-mal area, recoveries were limited to $250,000 of non-economic damages by the Medical Injury Compensation Reform Act (MICRA)  in 1975. Any damages that could not be proved up were thus capped, with no adjustment for inflation.  So, for example, a chid’s earning potential, as viewed by the law, is essentially zero, as they cannot be “proved.”  Even if the kid is singing in the womb, reading Shakespeare at age 2, and performing calculus at age 6, the damages for a lost child are too “speculative.” And thus any damages given to the kin of a child who was lost due to malpractice were non-economic and capped at $250,000.

That number hasn’t changed since 1975, and while it might have been possible for an attorney to make a decent living in 1975 at $250,000 per case, that is not the case today.  First there is inflation: $250,000 in 1975 is worth nearly a million today.  But even beyond inflation, trial costs are much higher today.  Expert witnesses now get astounding ($500-$1,000/hr) pay, and judges and juries now require more of this kind of testimony. Trials are very, very expensive.

And now, very few attorneys can afford to take these cases.  Even heartbreaking ones where families are left with nothing but a semblance of a shrine (Photo: Noah Berger / Chronicle):

Wayne Volkmuth learned what a “250 case” was while conducting research shortly after the loss of his 7-year-old son, Ryan, who died three years ago during a dental procedure at a Palo Alto clinic.

The “250” refers to $250,000, the most Volkmuth could recover in a medical malpractice claim over his disabled son’s death, a limit set 34 years ago by California’s landmark medical malpractice law. It’s also the reason his case was turned down by most of the dozen medical malpractice attorneys he and his wife consulted. (SF Chronicle 9/21/2009)

Insurance companies know how this works. They ssimply delay and delay, until any attorney who was willing to take the case figures out that the case is going to be a money loser.  And the result is this: the needless deaths of children and the elderly with no recourse whatsoever.

MICRA needs reform. At the very least, it needs to be adjusted for inflation.  But more than that, we need to restore the balance between the tort deform lobby and consumers.  Corporations and those with the biggest lobbying warchests win these fights, with stories like this as the end result.  Consumers are the ones who get screwed every time.  It is time to demand more from our legislators, both in Sacramento and DC.  Do not kowtow to those who simply waive cash. You represent the people, not the lobbyists. (See also ChangeCongress.org)

Intel pulls its anti-civil rights ballot initiative

Intel hasn’t been doing the greatest work on the PR end of things recently. You see, it started with this ad, where 6 black sprinters are crouching before a dorky white dude. (H/t to Jamie Court at HuffPo) That was particularly poor timing when you look at that in context with Intel’s ballot initiative that they decided to put into play for one of the many 2008 elections. (Or rather the initiative of the Civil Justice Association of California (CJAC), which Intel leads with several notable anti-consumer corporations.)  The ballot initiative would essentially eliminate class action lawsuits for civil rights cases.

As you might expect, civil rights groups did not take kindly to such a move. Class actions were the vehicle that desegregated the schools in Brown v. Board of Education and forced Denny’s to stop denying service based on skin color.  Check out this letter (PDF) sent by some of the state’s leading civil rights advocates to Intel’s Board. A quote:

Your initiative removes vital class action protections specifically intended to allow U.S. citizens to defend their civil rights (see attached analysis).  The extreme procedural burdens placed on plaintiffs and the endless appeal rights granted to defendants will prevent most civil rights class actions in the future.  We must view this initiative as an attack on the civil rights of Californians.

Well, now Intel and the CJAC have pulled the measure off the ballot.  You can send the Intel Board a thank you note at the Foundation for Taxpayer and Consumer Rights.  By the by, the FTCR is an excellent organization and is well worthy of our support.