July 10, 2013

Your Legislative Strategy Lesson For the Day: Don’t Get Cute

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Here in California we have a law called MICRA that caps payouts for pain and suffering in medical malpractice cases. I’m no big fan of laws like this, but let’s set that aside for the moment. There’s something I’ve always wondered about MICRA: it sets the payout cap at $250,000, and it’s not indexed for inflation. How did that happen? I mean, this law was passed in 1975, when inflation was practically a national obsession (remember all those WIN buttons?). It was obvious the cap would get whittled away to nothing before long, and sure enough, that’s exactly what’s happened. The cap today is less than a quarter of its value in 1975, making it so low that it’s nearly impossible to get a lawyer to take on lots of legitimate malpractice cases. The payout is too low to justify the amount of work it takes.

Today, Michael Hiltzik satisfies my curiosity. He talked to former California Assemblyman Barry Keene, who sponsored the bill and now has regrets, and he explained what happened:

Keene, now 74 and long retired from the Legislature, is tormented by the failure to protect the $250,000 cap from inflation.

As he explained to me in an email, he proposed an inflation-indexed cap in an amendment to his original bill, assuming it would pass routinely. Instead the trial lawyers lobby, which adamantly opposed MICRA, came out against the inflation index in order to make the bill as noxious as possible to guarantee its rejection.

They misplayed their hand. To their shock, MICRA passed the Legislature without the inflation provision, got signed by then-Gov. Jerry Brown and then was upheld by the state Supreme Court.

This is your legislative strategy lesson for the day: Don’t get cute. Most of the time, 11-dimensional chess doesn’t work. Just fight your fights.

In any case, Hiltzik has more in his column, including all the reasons that payout caps aren’t really a good idea. The California legislature will take up a proposal to amend MICRA later this year, and if they fail to do anything, a ballot initiative is reportedly on our way in 2014. It should be a doozy.

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