California trial lawyers have renewed their fight to lift the Medical Injury Compensation Reform Act (MICRA) cap on speculative, non-economic damages, presenting ballot language that seeks to more than quadruple the maximum award for non-economic damages to roughly $1.1 million. From Redding to San Diego, canvassers working to support the trial lawyers’ anti-MICRA ballot language have hit the streets, and have reportedly been gathering signatures at an alarming rate.

The Medical Injury Compensation Reform Act (MICRA) of 1975 was a statute enacted by the California Legislature in August 1975 (and signed into law by Governor Jerry Brown in September) which was intended to lower medical malpractice liability insurance premiums for California healthcare providers by decreasing their potential tort liability. MICRA’s stated justification, in turn, was to keep healthcare providers as a whole financially solvent, thus lowering the cost of healthcare services and increasing their availability. MICRA’s constitutionality was repeatedly challenged during the 1970s and 1980s, but most of it was eventually upheld as constitutional under rational basis review by the Supreme Court of California or the California Courts of Appeal. Almost all of MICRA is still in effect and still part of California law.

A RAND report estimates that defendants’ liabilities were reduced by 30% as a result of MICRA. Between 1985 and 1988, malpractice premiums rose 47 percent After 1988, the insurance premiums in California experienced a decrease. It is contested as to whether this decrease was a result of Proposition 103. Proposition 103 enacted Section 1861.01 of the California Insurance Code, which explicitly required the rollback of insurance premiums by “at least 20%”

The perceived success of MICRA in helping California healthcare providers stay financially solvent in turn inspired similar tort reform initiatives in other states. A prominent example was Nevada’s Question 3, which was enacted by the voters of that state in 2004 by a 60% majority. Like MICRA, Question 3 set a maximum schedule for attorney’s fees, and capped noneconomic damages at a slightly higher number, $350,000. Question 3 was also known as the KODIN Initiative after its main sponsor, Keep Our Doctors In Nevada. KODIN promoted Question 3 by pointing to an alleged trend of Nevada doctors fleeing the state for states with lower malpractice premiums like California. To directly counter KODIN, the Nevada plaintiffs’ bar put Questions 4 and 5 on the same ballot, and both 4 and 5 were defeated.

And now, a coalition of consumer advocates, trial lawyers and the nurses union is preparing to gather signatures for a state ballot initiative to raise the state’s cap on certain medical malpractice damages. The campaign wants voters to change a 38-year-old California law. A key element would seek to raise the cap from the current amount to about $1 million – and then increase it each year based on inflation.

“We are certainly planning an initiative absent any action legislatively,” said Jamie Court, president of the Consumer Watchdog, a Santa Monica advocacy group. “It’s pretty clear that we are getting two thumbs down from the Legislature.”

Opponents – including 700 organizations representing doctors, hospitals, clinics and insurers – are already on the counterattack. Raising the cap, they contend, would increase medical costs for consumers and the state by billions of dollars a year.