Op-Ed: Medical malpractice ballot measure would benefit lawyers

February 07, 2022

Perhaps more than any state in America, California continues to make progress toward the historic promise of health access for all.

Vital to that prognosis has been our state’s community health centers, located in medically underserved communities and providing diverse, vulnerable populations with primary and reproductive care.

Pandemic-related stresses on our overall health system, including the most recent hospitalization surge, has underscored the safety-net imperative of a strong and financially solvent system of community clinics.

It would be hard to imagine a worse possible time to pass a ballot measure that would disrupt the financing of California’s community health centers and access to the physicians and other clinicians providing essential care to Californians in need while increasing health costs for every Californian. But that’s what the proponents of the misleadingly self-proclaimed Fairness for Injured Patients Act, or Changes to Medical Malpractice Lawsuits Cap Initiative, appearing on the statewide ballot in November are trying to do.

This measure would dramatically impact the cost and delivery of health care in California – but it’s not written by health experts or real-life medical practitioners. Instead it was drafted to allow a few to make millions more from filing personal injury lawsuits.

What’s worse is that supporters are not saying what this measure would truly do.   

For many years, California’s medical liability system has been protected by a bipartisan series of laws called MICRA, the Medical Injury Compensation Reform Act, which has balanced the rights of injured patients while keeping health care more accessible and affordable for all patients.

While injured patients can receive unlimited payments for economic losses and medical expenses, there is a “cap” on non-economic damages. Despite what proponents are saying, the Fairness for Injured Patients Act would dramatically overhaul our health system far beyond a simple increase in the MICRA cap.

In fact, the Fairness for Injured Patients Act brazenly creates a new category of injury with no cap whatsoever – which is broadly defined and can include outcomes as innocuous as unwanted scarring. This is the loophole that would effectively obliterate the MICRA cap and start a mad dash by enterprising attorneys filing countless new lawsuits in already overcrowded courts.

To no one’s surprise, the Fairness for Injured Patients Act’s fine print stealthily removes all existing caps on attorney’s fees, resulting in huge financial windfalls for trial lawyers who sue doctors, nurses, clinicians and other health providers for a living. It also creates a new process that prohibits judges from independently verifying the truthfulness of statements made by trial attorneys in the initial court filings – another incentive for more frivolous lawsuits.

And who pays for this onslaught of new lawsuits and attorney payouts? The rest of us. The initiative would place an unmanageable burden on our health care delivery system at a time when many of our community health centers are already operating on razor thin margins and are faced with staffing shortages.

Taxpayers are on the hook as well. The state’s nonpartisan Legislative Analyst Office said the Fairness for Injured Patients Act “would likely have a wide variety of fiscal effects on state and local governments,” including “annual government costs likely ranging from the low tens of millions of dollars to the high hundreds of millions of dollars.” 

The trickle-down effect of this measure would result in community clinics closing their doors, essential health services being slashed and health care providers having to limit new patients. The hardest impact will be felt by women, communities of color and individuals with special needs – all when we should be reducing health inequities and expanding access to health care for those who need it most.

That’s why hundreds of organizations have already signed up to oppose the Fairness for Injured Patients Act in November.

Clinicians, physicians, nurses, dentists, community clinics, health centers, hospitals, public safety organizations and other frontline health care workers across the state are urging voters to say “No” to this dangerous, costly measure.

This op-ed, authored by Kerry Hydash, Family Healthcare Network, originally appeared CalMatters on February, 7, 2022.



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