In 1975 California doctors staged a walk-out to protest the rising medical malpractice insurance premiums that they were forced to pay due to the underwriting practices of the insurance carriers who sold this type of insurance coverage in California.

Governor Brown, in his first term, agreed to place draconian limits in the amount of $250,000 for an injured patient’s pain and suffering. Therefore, any individual who receives substandard medical care, or who goes into a hospital and doesn’t come out, due to the negligence of the physician or hospital personnel, can receive no more than this limit for those type of damages. This limits applies to all injuries, no matter how catastrophic they might be, including injuries which occur at birth which damage the brain or result in quadriplegia.

The Consumer Attorney Association for California is presently mobilizing for an initiative fight to increase this limit which was never intended by the Assemblyman who proposed it, John Garamendi, to be permanent.

However, the time and considerable money which will be expended, by both sides of this initiative battle, fails to address the real issue that this damage cap has had upon injured patients, who suffer grievous injuries through no fault of their own.

The Supreme Court of Florida, recently overturned Florida’s 2003 cap for malpractice damages by calling it discriminatory and therefore in violation of the in State Constitution. The court also investigated the basis for the so called medical malpractice insurance crisis that prompted the Florida State Legislature to impose these damage caps.

The Court determined that the assertion that doctors were leaving the state in droves because of multi-million dollar malpractice awards by juries, driving insurance premiums sky high, was untrue.

During the “purported crisis”, the supply of doctors in Florida was increasing not decreasing. Reports of physicians fleeing where anecdotal and often fabricated. The actual increase for rising medical malpractice insurance premiums was found not to result from litigation claims but from the insurance industry’s underwriting practices. These same practices were also behind the so-called medical malpractice crisis in California which resulted in the current stringent malpractice cap.

The Court also cited evidence that malpractice caps have no appreciable effect on malpractice rates. The Court did find that just like in California, these caps significantly increase and ensure insurance company profits without achieving anything for the doctors who pay premiums or the patients who are turned away at the courthouse door.

The Court determined that this limitation was unfair and illogical, effectively saving a modest amount for many by imposing devastating costs on a few. The individuals who are most grievously injured or who sustain the greatest damage and loss simply because of the existence of this cap on their pain and suffering.

Therefore, the true debate should be whether or not these caps should be removed entirely instead of just raising them in order to provide additional profits for the medical malpractice insurance companies. Those caps also unfairly protect the medical providers who negligently inflect catastrophic harm to their patients.