Clovis couple seeks repeal of malpractice payout caps

The Fresno BeeJune 9, 2013 

A Clovis couple has joined a statewide coalition to repeal a 38-year-old California law that caps medical malpractice damages for pain and suffering.

Doug and Linda Wilkinson say the law, which limits non-economic compensation to $250,000, is an injustice to families who have lost loved ones.

Their daughter, Brittany Wilkinson, an advocate for the disabled, died in September 2009 at Children's Hospital Central California, allegedly after a procedure to clamp two shunts that had been placed to drain fluid buildup in her brain. She was 18.

"Brittany was in agony before her death," said Linda Wilkinson. "She would scream, 'If you don't want to help me, just let me die.' "

The Wilkinsons have sued the doctor and the hospital and have aligned with 38 Is Too Late, a group that is trying to eliminate the medical malpractice cap. Brittany's picture and story are among more than three dozen on the group's website.

The Medical Injury Compensation Reform Act (MICRA) has been controversial since it was enacted in 1975. Opponents — backed by trial lawyers — say the only ones to benefit have been insurance companies and health providers. The advocates — backed by insurance companies and health providers — say the cap has kept health-care costs in check and encouraged doctors to practice in California.

"We're not going to let 38 years go by without a change," said Jamie Court, president of Consumer Watchdog, a California-based, nonprofit advocacy organization supporting the 38 Is Too Late campaign. "Doctors can maim and murder without accountability in this state."

The 38 Is Too Late group says when the cap was set 38 years ago, the average home price was $42,000 and a gallon of gas was 57 cents. If the cap had been adjusted for inflation, it would be $1 million today, it says.

Californians Allied For Patient Protection, an organization with members from government, insurance, hospitals and clinics, counters on its website that a 2010 study showed an increase of the cap to $500,000 or more would raise health-care costs in California by up to $9.5 billion per year.

The malpractice cap protects access to health care and the challenge is because "trial lawyers want to increase lawsuit payouts so they can get bigger payouts," said Lisa Maas, executive director of Californians Allied For Patient Protection.

Ramping up rhetoric

The latest drive to end the cap has become intense, with 38 Is Too Late gathering families at the state Capitol to speak at news conferences, a Facebook page with more than 7,600 "likes" and a Sacramento billboard showing an infant who died from whooping cough.

The challenge comes as Californians prepare for federal health-care reforms in 2014 amid fears that costs could increase.

Eliminating the medical malpractice cap "defeats the intent of federal health-care reform," which attempts to cover everyone with health insurance, Maas said. Communities will need more doctors and health providers, she said, and malpractice insurance rates would skyrocket, making it harder for doctors to practice and clinics to stay open.

California has always had difficulty recruiting doctors because of its stricter licensing requirements, said Cathy Frey, chief executive officer at Central Valley Health Network, a consortium of 13 community health centers. Changing the malpractice cap would "make an already horribly challenging experience of trying to recruit doctors to work in the central Valley almost impossible," she said.

Doctors practicing in high-risk specialities such as obstetrics would be discouraged from practice if malpractice premiums increased, said Dr. Mario Martinez, a medical resident in Fresno with the University of California at San Francisco Fresno Medical Education Program.

Martinez, a Bay Area native, said he plans to stay in the Valley to practice obstetrics, but if malpractice insurance is too high, "that would limit me in serving the population I want to serve," he said. He wants to help the underserved, people who have no insurance or who are low income.

Those spearheading the fight to eliminate the cap acknowledge they have an uphill battle. If they are unable to get legislation, they plan to go to voters with a ballot initiative. It will take money to gather signatures for the ballot, but the effort has financial support from the Consumer Attorneys of California Association.

They assert that malpractice insurance rates haven't driven doctors out of states — and in the years since the law, new regulations limit how much insurance rates can be increased in California.

Bob Pack, the Bay Area founder of the Troy and Alana Pack Foundation, said those championing the $250,000 cap "use all the excuses they can think of to try and thwart this effort (to eliminate the cap) when they absolutely know they're in the wrong for victims and victims' rights."

His foundation was named after his two children, who were run over and killed nine years ago while out for a walk. The woman who was driving had been given large amounts of prescription drugs by several doctors, Pack said.

The California malpractice law does not limit economic damages for medical costs and allows for unlimited damages for lost wages and earning potential, which supporters say gets lost in the debate.

But capping non-economic damages serves to dissuade the filing of meritless lawsuits and keeps health-care costs down, which benefits everyone, but especially people with lower incomes, they say.

Opponents say the law squelches legitimate cases and disproportionately affects low-income and elderly Californians who have limited resources. The cap makes these cases uneconomical for lawyers who take contingency fees.

William "Bill" Newkirk, a Los Angeles lawyer representing the Wilkinsons, said medical malpractice cases are expensive to litigate.

"We've already spent close to $35,000, and we're not done with expert depositions," he said.

Brittany's case

The Wilkinsons said money is not why they joined the 38 Is Too Late campaign.

"We're not doing this so we get a big award," said Doug Wilkinson, a retired California Department of Forestry fire captain.

"It's not about money, it's about accountability to doctors and nurses," said Linda Wilkinson, who is disabled by the same rare mitochondrial disease that afflicted Brittany. The disease prevents food from being turned into energy.

Brittany had developed excess spinal fluid not related to her disease, and the condition required shunts to relieve the pressure in her brain, Linda Wilkinson said. Brittany was to be monitored at Children's Hospital after a procedure to see if one or both shunts could be clamped, Wilkinson said.

In Brittany's case, the Wilkinsons said a probe to measure the pressure was improperly placed; a nurse failed to call the doctor when Brittany began having pain; and the physician had a responsibility to check on her patient, regardless of not getting a telephone call.

The sides have been unable to reach a settlement, and a trial is scheduled for January.

Lawyers for Children's Hospital and Meredith Woodward, the doctor named in the lawsuit, expressed sympathy to the family.

Woodward's lawyer, Mike Ball of Fresno, said "Brittany was a fantastic person and Dr. Woodward was devastated when Brittany passed." However, the doctor "really feels like she hasn't done anything wrong," he said.

Linda Wilkinson, who spoke last month at a 38 Is Too Late event in Sacramento, said Brittany "died a horrific death that could have been prevented." She needs to keep Brittany's memory alive, she said.

Pack, who is writing language for a ballot initiative to eliminate the malpractice cap, said polling shows the public supports overturning the $250,000 limit on noneconomic damages.

Maas said the public wants to protect the law. People understand that health-care costs would increase and access to doctors would diminish, she said.

 

The reporter can be reached at (559) 441-6310, banderson@fresnobee.com or @beehealthwriter on Twitter.

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