Q: We have friends who lost a loved one as a result of medical malpractice. We were stunned to learn the total amount of grief damages (pain and suffering) was $250,000 for both of them, not each. Is it still that low?
D.H., Irvine
A: In 1972, California enacted MICRA, which stands for “The Medical Injury Compensation Reform Act.” The law placed a limitation on non-economic damages (sometimes referred to as pain and suffering) at $250,000 for everyone affected, not per person. In addition, the lawyer fees recovery was limited (40% of the first $50,000, 33.33% of the next $50,000, 25% of the next $500,000 and 15% of anything above $600,000).
Medical malpractice often is expensive, requires expert testimony and can be very time-consuming. Juries also often “like the doctor,” and there have been limitations on recovery, including attorney fees. All of that has tended to dissuade many (I would say most) lawyers from taking medical malpractice cases.
In May 2022, Gov. Gavin Newsom signed legislation that is said to modernize the MICRA system for awarding damages in California medical malpractice cases. The existing $250,000 cap on non-economic damages is increased, and future increases are to account for inflation. There are now two separate caps, depending upon if a wrongful death case is involved. In a wrongful death, medical malpractice matter, the cap increases to $500,000; then, each Jan. 1 thereafter, this cap increases by $50,000, until it reaches $1 million. If wrongful death is not involved, the cap has been increased to $350,000, and increases each year by $40,000 until the cap reaches $750,000.
As for attorneys, the fee cannot exceed 25% of the amount recovered if a settlement is reached before a lawsuit is filed, or 33.33% after a civil lawsuit is filed. Note the term “recovered” means the net amount the client receives after deducting the costs incurred in connection with the case, excluding the client’s medical expenses or the attorney’s…
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