San Francisco Injury Attorney Blog

Many Californians who seek advice about pursuing a medical malpractice case are very surprised to learn that there is a limit on the amount of "pain and suffering" damages that they can receive, that has not been increased since it was put in place over 35 years ago. The MICRA law, which was created in a special session of the legislature convened by then-governor Jerry Brown in 1975, limited "general damages"--the primary are of recovery for most victims of malpractice in California--to $250,000. That may sound like a lot of money, but not to someone who has lost a limb, or even a loved one to malpractice. Economists calculate that today's $250,000 is roughly equivalent to $65,000 in 1975. California is one of 35 states with a cap on malpractice awards, but many other states have a cost of living increase in their laws.

Now there is a case making its way to the California Supreme Court challenging the MICRA law and its cap on damages. The limits have been challenged before, but this case, Van Buren v. Evans, raises some new California constitutional objections to the law, as well as those based on the U.S. constitution. So far, the doctors have won the first round, as the challenge was rejected by the California Court of Appeal.
The MICRA law, which also limits attorneys fees, and permits doctors and their insurance companies to pay large awards in installments, has had a big impact on patients' ability to find attorneys. Each year, the value of the $250,00 cap is less, and the costs of litigating a case are greater. Thus there are less attorneys willing to take these cases with each passing year. The attorneys who do take the cases become more conservative in their case selection, leaving more and more malpractice victims unable to find counsel.

There is no cap, though, on recoveries for "economic" losses, such as loss of earnings. This results in an inherent bias against cases brought on behalf of children, or retired persons, who cannot prove any lost earnings. There is likewise no limit on recovery for future medical expenses, but many cases involving severe damages, including death cases, have no such expenses.

The lobbyists for the doctors and their insurers argue that if the cap is removed, or even allowed to adjust for the cost of living, the cost of malpractice insurance will go too high, and we will have a doctor shortage and increased health care costs in California. Nationwide, though, doctors' insurance amounts to only about one percent of health care costs.

Why isn't there more pressure from the public to increase the 35 year old cap on these malpractice damages? Probably because this is not an issue that most people concern themselves about, unless they or a member of their family experiences malpractice. It is difficult to get people really interested in changing a limit that they believe will never affect them. Many or most people are not even aware of the limits. Typically, people find out about the limits only after consulting a lawyer about a potential case.
Since this is not an issue that's likely to be the subject of a ballot proposition in California, the best chance for changing the MICRA limits law lie with legal challenges to the law, or in the new constitutional challenge now making its way through our courts.

Continue reading "New Challenge To California's Medical Malpractice Compensation Caps" »

If you haven't done so recently, now is a good time to double check your auto insurance policy limits. Many people end up with liability coverage limits that are recommended by their insurance agents when they first buy the policy. Often, these limits have been in effect for many years, even though an individual has accumulated more assets--such as a home in the San Francisco Bay Area--and their financial picture has changed considerably.

Even the best driver runs the risk of causing a death or serious personal injury while driving a car, or being involved in an accident where he or she is blamed for a serious accident that severely injures someone. How could that happen to a good driver? Here's one example: a child runs out in front of a car without looking. Accident reconstruction tests are performed, showing that the driver was going 35, when the speed limit was 25. This can easily happen in areas where the roads are marked with limits that are low for the type of road, or where the speed limit on a road changes during a drive. When an accident causes a death of a wage earner, or causes catastrophic injuries, the liability exposure can be in the millions of dollars.

If you have little or no assets, you may not be very concerned about injury liability exposure. But if you own a home, other real estate, have savings, investments, or other assets of considerable value, an auto accident claim could wipe you out.

We have handled numerous cases over the years in which the party at fault did not have enough car insurance, and had to mortgage their home, and sell investment property as a result of a lawsuit.

So how much auto insurance should you carry? The more the better. You may not be able to buy enough insurance to fully cover a catastrophic personal injury claim, but by having high limits, you create a fund that could be a big bargaining chip in getting a "full and final" release from further claims by the injured person. Many attorneys do not want to go through the very difficult process of collecting from an under-insured person's personal assets, and may encourage their clients to accept the insurance proceeds instead of proceeding against your personal assets.

Auto liability insurance limits of $250,000 or more provide a thick layer of insulation between you and personal injury claims and do not cost that much more than lower limits. An even better choice is to purchase an "umbrella" policy. This is an additional policy that extends your liability for personal injury and wrongful death claims to a high limit, usually 1 or 2 million dollars. Umbrella policies typically only cost a few hundred dollars per year, and are well worth the investment if you have significant assets.

Continue reading "Auto Accidents: Do You Have Enough Insurance?" »