Assembly Bill 35 (AB 35) was passed in California in May of 2022. This updates the compensation limits in medical malpractice cases that were originally set in 1975, and hadn’t been updated since. These adjustments may grant access to important financial compensation for the injured, their families, and those affected by wrongful death due to medical malpractice.
At Hodes Milman, we welcome these updates. They will greatly improve the possible outcomes for medical malpractice clients, and have the potential to raise the quality of health care policies and standards in California.
If you need the services of a medical malpractice lawyer in Southern California, contact Hodes Milman at our Orange County offices at (949) 640-8222. We are on hand to provide you with guidance and the latest updates on medical malpractice law.
Click here to view the full text of AB 35. Read on to learn about these updates, and how they may impact medical malpractice clients and their loved ones.
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What is AB 35? How Will It Affect Micra Caps?
AB 35 makes several important changes to the Medical Injury Compensation Reform Act of 1975, also known as “MICRA.” In particular, AB 35 restructures the limits on attorney fees in medical malpractice cases; more importantly, it increases the compensation cap on non-economic damages for those injured by medical malpractice.
For nearly 50 years, MICRA limitations denied California patients of fair financial assistance in medical malpractice lawsuits. It did so by capping damages for pain and suffering at $250,000.
Thus, even if a jury felt that millions of dollars was appropriate compensation for the pain and suffering for something as serious as cancer misdiagnosis, the judge had to reduce those specific damages to $250,000. In many cases, juries were not informed of this cap or provided with clear instructions regarding the cap before they began their deliberations.
As a result, juries wasted time deciding on fair damages, because any non-economic number above $250,000 was disregarded. With AB 35, such waste of judicial resources will be prevented as juries can now assess meaningful damages awards for the injured.
AB 35 will address these issues by providing built-in mechanisms for yearly adjustments. It vastly improves a patient’s ability to obtain the financial resources needed for a better lifestyle after an injury caused by medical malpractice.
How Will AB 35 Affect Medical Malpractice Lawsuits?
Medical malpractice lawsuits are those that involve injuries caused by the negligence of a doctor, nurse, hospital staff, or other parties. The passage of AB 35 accomplishes several changes for parties who may be involved in a medical malpractice claim:
- Injured patients: AB 35 immediately raises the previous cap for non-economic damages from $250,000 to $350,000. It provides for incremental increases over 10 years, until the total amount reaches $750,000. A separate cap may be considered for “unaffiliated health care providers.”
- Family members: The cap for wrongful death cases increases from $250,000 to $500,000 immediately, with incremental increases over 10 years until the cap reaches $1 million.
- Attorneys: Restrictions that apply to lawyer fees will change to a cap of 25% of the amounts recovered before filing a complaint or arbitration demand, and 33% of the amounts recovered after filing. Attorneys may petition for a higher contingency percentage if the case ends up being tried or arbitrated.
AB 35 helps to ensure that the cap never again becomes stagnant and continues to adapt to costs of living, as it did after the 1975 law was passed. It does so by guaranteeing that the non-economic damages caps increase yearly by 2%, in order to account for inflation. This is in addition to the initial increases mentioned above.
Non-economic damages are intended to address long-term costs and losses such as:
- Reduced quality of life for those with permanent injuries
- The loss of another’s companionship due to a wrongful death
- Pain and suffering, disfigurement, emotional distress, and other hardships
Adjusting the MICRA cap will help heal deep traumas and improve future living standards. These changes acknowledge the hardships and emotional burdens individuals and their families face in connection with medical malpractice.
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When Will AB 35 Go Into Effect?
AB 35 will go into effect on January 1, 2023, along with all of its associated provisions. Accordingly, all medical malpractice cases filed or arbitrations demanded on or after that date will be subject to the new guidelines.
Consider this: the initial MICRA caps were set during the same year the Vietnam War ended, with no regular adjustments to account for inflation or the rising cost of medical care since then. During this time, countless Californians injured by negligence never received the just compensation they should have for their losses.
Thus, the passage of AB 35 is a crucial development for the personal injury rights of all California patients. By holding the proper parties fully accountable for their negligence, each case may also lead to meaningful reform.
After so many decades, patients and their families can access improved compensation standards, free of outdated provisions and standards.
What Is the History Behind MICRA?
Why did the MICRA statute arise? What was the perceived need for it? In the mid-1970s, there was a prevalence of frivolous lawsuits and instances of excessive settlement amounts. This had the effect of driving insurance premiums up and affecting physicians’ access to insurance coverage.
In order to help doctors keep their patients and keep their insurance coverage, the California Medical Association (CMA) organized a grassroots campaign to find a solution to the situation. Following rallies, hearings, and other efforts, the California legislature passed AB 1XX, now known as MICRA. It was signed into law on September 23, 1975.
Medical malpractice cases that have been particularly affected by the MICRA cap include:
There have also been issues regarding MICRA’s applicability to unsupervised conduct and its impact on the California Medical Board. There may also be questions about other details such as its effect on the statute of limitations and wrongful death claims.
While at the time of its passage, MICRA may have been seen as a response to the insurance pressures faced by doctors, again, it became problematic over time as it was never updated since its inception. This caused it to enforce disproportionate constraints on medical malpractice damages due to inflation. AB 35 serves to rectify these shortcomings and prevent such issues from affecting patients in the future.
Contact a Medical Malpractice Attorney at Hodes Milman
The legal definition of medical malpractice includes any negligent act or failure to act by a doctor, hospital, or other health care professional, which causes injury to a patient. Common examples include birth injuries, breast cancer misdiagnosis, and other claims. At Hodes Milman, we can help you pursue justice to the full extent of the law.
Prior to AB 35, the cap for California medical negligence lawsuits had not changed in over 45 years. More than half of all states in the country, including New York, Washington, New Jersey, and Pennsylvania, do not have such compensation caps that limit juries’ verdicts in medical malpractice cases. It’s time that the rights of patients be given the attention and protection they deserve.
MICRA restrictions made it almost impossible for injured patients to be fully compensated for the devastation in their lives. The statute limited non-economic damages in California medical malpractice cases for decades. AB 35 helps to correct these injustices, and our lawyers are on hand to help you navigate these new changes.
If you or a loved one were affected by medical malpractice, and have questions about the compensation you are owed, contact Hodes Milman directly through our online form or by calling (949) 640-8222. Our team has extensive experience in handling complex medical malpractice claims.