On September 25, 2019, parents with children who require lifelong care after suffering permanent injuries caused or compounded by their medical care filed an initiative in California that would fundamentally change the state’s nearly 45-year-old $250,000 cap on pain-and-suffering-type damages in medical malpractice cases.
The proposed initiative, titled the Fairness for Injured Patients Act, would fundamentally change existing law by increasing the $250,000 limit for noneconomic damages to take into account increases in the Consumer Price Index since 1975, and thereafter would adjust the limit annually. Adjusted for inflation, the current $250,000 cap would be over $1 million today. The initiative would also allow judgments in excess of these caps for “catastrophic injuries”—defined as “death, permanent physical impairment, permanent disfigurement, permanent disability, or permanent loss of consortium.”
Proponents of the proposed initiative must collect signatures from nearly 625,000 registered voters to qualify the measure for the November 2020 ballot. This is not expected to be a problem given the issue and given that two high-profile proponents are expected to actively fight for the measure—Consumer Watchdog and the Consumer Attorneys of California. Both groups have decades of experience working for and against initiatives in California, and each group has demonstrated its ability to fund successful signature-gathering efforts in the past.
The ultimate question is whether the opponents of the proposed initiative, expected to include the California Medical Association and Californians Allied for Patient Protection, can successfully finance and mobilize an opposition campaign. They have reason to be optimistic. In 2014, Proposition 46 would have raised the MICRA cap to over $1 million but failed passage, with 66.8% of voters opposing the measure.