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California Supreme Court Is Asked to Review Issues Related to Caps on Medical Malpractice Cases. Medical Injury Compensation Reform Act of (MICRA) 1975 has not changed since its inception. It limits non-economic damages (pain & suffering) in Medical Malpractice cases to $250,000. In the case of Sarinanan et al. v. Glenn Ledesma M.D. et al., case number S262487, before the Supreme Court of the State of California, a mother who's $4.25 million medical malpractice award was slas...hed by the trial judge to $250,000 pursuant to California's MICRA cap on pain-and-suffering damages has petitioned the court for review. Cal. Civ. Code section 3333.2, states that In no action [for injury against a health care provider based on medical negligence] shall the amount of damages for non-economic losses exceed $250,000. Non-economic damages are also typically called general damages, and include monetary awards intended to compensate for pain and suffering, loss of enjoyment of life, and emotional harm. As a practical matter, general damages make up the bulk of an injured person’s damages in medical malpractice cases. In the mother's case tragic case, two physician assistants failed to timely diagnose a malignant melanoma in her daughter that caused the child's death at age 4. The mother sued the two physician assistants and a Los Angeles County jury awarded her $4.5 million. After the jury was discharged, the trial judge reduced the award to the statutory $250,000. The mother is now asking the Supreme Court to reinstate the award because the physician assistants acted outside the scope of services for which a health care provider is licensed because they provided medical care without any physician supervision, in violation of California statutes and regulations. The Court of Appeal recently upheld the Los Angeles County judge's post-trial reduction stating that a physician assistant can be considered acting within the scope of his or her license "if he or she has a legally enforceable agency agreement with a supervising physician, regardless of the quality of actual supervision." The mother also argued that the doctors that were supposed to be supervising the PAs were disabled and not physically capable of supervising the PAs. Several recent California Supreme Court opinions, have not undermined MICRA's basic constitutionality, and the court has suggested that any modification or repeal of the law must come from the legislature. The relatively low amount of the cap, which was not indexed to inflation in the original law and is among the lowest in the nation, has also become increasingly controversial, but our legislature has failed to act. It will be interesting to see if the Supreme Court will take up the case and if it will address the 45 year old cap of $250,000 which is ridiculous. California is among 31 states who have some type of mechanism for capping damage awards in medical malpractice claims.

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