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SACRAMENTO — Earlier this year, the Consumer Attorneys of California said its top priority with the Legislature was revamping the state’s cap on medical malpractice damages. Now the session is well under way and bills have come and gone — along with legislative deadlines — but no one has introduced a measure to overturn the 1975 Medical Injury Compensation Reform Act, or MICRA. At least not yet. Reworking MICRA remains a gleam in the eye of Consumer Attorneys President Bruce Brusavich. And though he won’t say for sure if his influential lobby plans to introduce a bill by the end of the legislative session in September, he also won’t rule it out. After being distracted at the beginning of 2003 by the threat of federal MICRA legislation, the plaintiffs bar has now refocused its attention on Sacramento. Brusavich, of Agnew & Brusavich in Torrance, said the Consumer Attorneys will continue discussing the issue with legislators this summer in an effort to win support for a bill the group believes is nearly 30 years past due. Plaintiffs lawyers have been trying to change MICRA since its passage after a special legislative session called by then-Gov. Jerry Brown. Designed to repair an out-of-control medical malpractice insurance market, its provisions include a $250,000 cap for non-economic damage awards and a fixed scale for attorneys fees that gives them a smaller percentage as awards get larger. It also allows defendants to tell juries that plaintiffs have received money from other sources — such as insurance companies — and lets damages be paid back incrementally, rather than as lump sums. Brusavich said his wish list for MICRA includes cost-of-living adjustments to the damage award cap. He said the $250,000 cap should be at least $860,000 today. In addition, he thinks juries should be told of the cap. Currently, Brusavich says, it’s common for jurors to award huge sums for pain and suffering; judges then cut those awards to comply with the cap. None of that is told to jurors, who are often bitter that their work was for naught, he said. He would also like to change the structure for attorneys fees, and he wants to see better policing of bad doctors. MODERATE SCARE So far, this year’s session seems to be going pretty well for the plaintiffs bar. The attorneys are poised to successfully block major reforms to the state’s unfair competition law and have several other bills moving toward Gov. Gray Davis’ desk. Even so, MICRA legislation would mean the Consumer Attorneys will have to contend with the moderate Democratic caucus, a group of about 15 Assembly members that breaks party lines by refusing to vote for Democrat-backed measures that members believe would be bad for businesses. The moderates have given the Consumer Attorneys a couple of scares already this year by nearly defeating two bills: the one on unfair competition and a measure that increases access to discovery in elder abuse cases. In fact, the elder abuse bill, AB 634, re-ignited the MICRA debate because tort reformers claim it gives plaintiffs attorneys incentives to file under the elder abuse statute. Because those actions aren’t subject to MICRA caps, the bill will result in more plaintiffs cases that skirt the law’s restrictions, opponents say. The bill’s author, Assemblyman Darrell Steinberg, D-Sacramento, has since added an amendment that he hopes will shut down such criticism. Assemblyman John Dutra, D-Fremont, a leading moderate, said he and others stayed away from AB 634, even with Steinberg’s amendment, because “it’s the camel’s nose under the tent, and � eventually you’ll get to an outright modification” of the MICRA cap. Dutra said he and others would resist any change to the cap. But the man that members look to as the de facto moderate leader is speaking for a dwindling perspective. Only five other Democrats stayed off Steinberg’s bill — not enough to stop it in the Assembly or to block a MICRA modification. Brusavich admitted the moderates continue to be a problem, but said their threat was diminished after his lobby “realized that we had to work on the makeup of the Legislature” and got more progressives elected. As for a MICRA bill this year, what about those pesky legislative rules, the ones that say bills have to be introduced by springtime to give legislators opportunity to examine them? “There’s always time. Look what we did with summary judgment last year,” Brusavich said, referring to his group’s successful push to reform court rules. Although the measure was introduced just days before the end of the 2002 session, Democrats were able to get enough votes to waive the rules for legislative deadlines. Just as the Consumer Attorneys are spending time with legislators this summer, their opponents are working the Capitol to defend the law. “I would think it would be very difficult for [the plaintiffs bar] to do something that’s never even been mentioned” this year, said Jeff Sievers, vice president of the Civil Justice Association of California. Still, Sievers said he’s “definitely mindful” of the possibility of a late-session MICRA bill. He said his side has been talking to members about responding with a referendum, which is a way of blocking a new law by putting the issue to voters. The Civil Justice Association came within inches of doing that to try to block last year’s summary judgment bill, but the businesses that make up the organization’s constituency eventually decided it wasn’t worth the trouble, Sievers said. NUMBERS GAME Legislators in the 1970s passed MICRA hoping it would stabilize doctors’ insurance premiums and keep them from skyrocketing in response to lawsuits. Now, judging the law’s effectiveness comes down to a battle of statistics, with each side able to produce numbers and graphs to back up their position. On one side, doctors’ groups, large corporations and tort reformers hold up California’s relatively stable insurance premiums as “exhibit A” to demonstrate that MICRA has done its job. Plaintiffs attorneys, by contrast, say stable rates have more to do with 1988′s Proposition 103, which drastically reformed insurance in the state. If anything, they say, MICRA has hurt the medical industry by discouraging attorneys from taking on complicated cases because they know there’s no money in it, and that means the few doctors who are responsible for the majority of malpractice can stay in business. The plaintiffs bar last tried to alter MICRA in 1999. Brusavich said the Consumer Attorneys then sat back for a few years because “we needed to go through an election cycle and weed out some of the business Democrats.” Even though MICRA was the top of this year’s Capitol agenda, the Consumer Attorneys had a broader threat to deal with first — a federal pummeling of trial lawyers. In his State of the Union on Jan. 28, President Bush said, “No one has ever been healed by a frivolous lawsuit.” A week later, Pennsylvania Republican Rep. James Greenwood introduced a measure modeled on California’s MICRA. California Sen. Dianne Feinstein even took up the torch, and it appeared that Congress was ready to adopt some kind of MICRA restrictions for the entire nation. Brusavich and others flew to Washington, D.C., and lobbied hard against both measures. Citing a lack of support from doctors, Feinstein dropped her proposal. And although Greenwood’s plan cleared the House, Brusavich doesn’t believe it will make it out of the Senate. Back in Sacramento, the Consumer Attorneys enlisted the help of liberal state Sen. Sheila Kuehl, D-Santa Monica, to put up a bill that can be used as a vehicle for modifying MICRA. For now, her SB 513 proposes nonsubstantive changes to the Medical Practice Act, but it could be “gutted and amended” later if Democrats are able to persuade legislators to waive certain rules. According to Kuehl’s office, the senator does not plan to move the bill herself, but will put SB 513 through as a courtesy to the trial lawyers, who would have to get someone else to carry it. Considering they count the leaders of both the Senate and Assembly as their allies, that shouldn’t be difficult. And Brusavich said he’s planning to lobby hard on MICRA, bringing in victims of alleged malpractice and introducing them to legislators. He said he looks forward to the debate this summer “because we’re right, and we’ve got some really compelling stories.”

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