Medical malpractice deal could replace ballot measure, still raise monetary awards

After years of multimillion-dollar battles over medical malpractice awards, legislators and advocates on both sides have reached a deal, potentially averting a ballot measure that would have put the decision to voters.

The agreement, announced today, would replace the ballot measure with legislation raising the cap for a patient’s “non-economic damages,” or pain and suffering, although in a more incremental approach than the initiative would have.

Under the legislative deal, starting Jan. 1, 2023, cases not involving a patient death will have a new limit of $350,000, with an increase over the next 10 years to $750,000 and a 2% annual adjustment for inflation after that. Meanwhile, cases involving a death will have an increased limit of $500,000 that will grow over the next 10 years to $1 million, with a 2% annual increase thereafter.

Under current law, a $250,000 cap only applies to non-economic damages and Californians who suffer from medical malpractice can recover as much as they need for medical bills and loss of income.

The California Medical Association today sent a letter to its members detailing the deal.

“The two sides of the ballot measure campaign have committed to putting patients first, to prioritizing the stability of affordable access to health care, and to set aside differences to do what’s right for all Californians,” says the letter signed by Dr. Robert E. Wailes, president of the California Medical Association.

In the letter, Wailes said his organization is working with Gov. Gavin Newsom’s administration and the Legislature to turn this new arrangement into law. “Under the agreement, the initiative will be withdrawn from the ballot and this watershed agreement will preclude another costly fight.”

The ballot measure, known as the “Fairness for Injured Patients Act,” was brought by families of injured patients and is backed by the advocacy group Consumer Watchdog and trial lawyers. It sought to increase the compensation cap for non-economic damages to about $1.2 million. The current cap is set at $250,000 and has been in effect since 1975.

The ballot measure would have allowed a judge to exceed that cap if a patient died or suffered a “catastrophic injury,” meaning an injury that left them permanently disabled or disfigured.

Nick Rowley, a trial attorney who helped author the measure and a key funder of it, said taking the legislative route through Assembly Bill 35 secures a cap increase for patients and their families. The legislation would allow for multiple caps — one for a medical institution and another for a provider, for example. That means that in a case not involving a death, a patient could potentially hold multiple parties liable and receive more than $350,000, Rowley said.

“That’s a big change and that number is going to go up,” he said.

Rowley said he is ready to pull the ballot measure as long as the bill is signed as is. Newsom has until the end of June to sign.

The Medical…