Note to Gov. Brown on Medical Liability Law: If It Ain’t Broken, Don’t Operate

California’s “tort wars” are heating up, and Dan Walters of the Sacramento Bee notes: “The big question is whether plaintiffs’ attorneys will try again to overturn the $250,000 cap on pain and suffering damages in medical malpractice cases that Gov. Jerry Brown signed in 1975.”

If increased by legislators—instead of by voters at the ballot box—a higher cap would have to be approved by Brown. The current cap limits jury awards to $250,000 for impossible-to-quantify pain and suffering damages in medical lawsuits. It does not limit compensation for lost wages, medical costs, childcare, home care, or any other out-of-pocket expense.

It would be a huge mistake for Brown to increase, index, or eliminate the limit because it has been a reasonable constraint on juror behavior that significantly improved health care in California. Jerry Brown just needs to listen to himself from 1993 as to why the bill worked:

At the time [1975], California’s medical community was in the midst of a crisis. The cost of medical malpractice insurance policies was skyrocketing. Many physicians were forced to “go bare,” because they could not afford to purchase insurance, some discontinued providing certain high-risk procedures, while others threatened to quit. Insurance companies claimed that the costs associated with malpractice insurance were rising at such a rate that their only option was to raise health care professionals’ liability premiums or to withdraw from the market altogether. In short, the stability of the health care system in California faced a grave threat.

The limit helped keep medical liability insurance premiums affordable and doctors in the state. It spared California all the turmoil of the 1990s and 2000s experienced by other states with no limits at the time such as Illinois, New Jersey, New York, Pennsylvania, and Texas. Patients in these states often had no access to care, especially in rural and low-income neighborhoods, due to doctor shortages. Patients often traveled long distances to find doctors, especially those who practiced high-risk specialties. Tragically, some patients didn’t make it in time and died. After Texas adopted reasonable limits on pain and suffering damage awards in 2003, medical liability insurance premiums fell and doctors flooded back into Texas.

As any doctor will tell you, “If it ain’t broken, don’t operate.” So Gov. Brown should not alter the limit he approved and that has worked well.

Lawrence J. McQuillan is a Senior Fellow and Director of the Center on Entrepreneurial Innovation at the Independent Institute. He is the author of the Independent book, California Dreaming: Lessons on How to Resolve America’s Public Pension Crisis.
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