Malpractice: An Effective Ray of Hope for Doctors

Anthony Francis, MD, JD

Disclosures

May 03, 2012

In This Article

California: An Indirect Effect on Expert Witnesses

The Medical Injury Compensation Reform Act (MICRA) was passed in California in 1975. Over the years it has had several effects. One has been to limit jury payouts. According to the study "Punitive Damages in Financial Injury Jury Verdicts" published by Rand Corporation in 1997, cases most likely to have awards capped are mortalities, the severest nonfatal injuries, and/or plaintiffs younger than 1 year. Defendants' liabilities were reduced by 30%. Attorney fees were reduced by 60%. Plaintiffs' net recoveries (final awards less fees) were reduced by 15%. The reduction in potential attorney fees has discouraged the hiring of experts in many weak and marginal cases.

The sliding scale imposed by MICRA on plaintiffs' attorney fees has also had a dramatic effect. The law prohibits attorneys from charging more than 40% of the first $50,000 of any recovery, more than 33% of the next $50,000, more than 25% of the next $500,000, and more than 15% of any amount over $600,000. It is estimated that this has reduced attorney fees by $140 million when compared with the typical contingency fee arrangement.

Discouraging attorneys from filing suits because of the expense of experts has been an unexpected result. With the steep cuts in fees, attorneys have been more selective in malpractice cases.

Typically these cases have a relatively low rate of plaintiff victory at trial and require high costs for expert medical witnesses. These costs are almost always borne by the plaintiff's attorney as "up-front" money. With a decreased amount that can be won, the attorney is more selective in filing the case.

Can the Judge Decide Which Evidence Gets Heard?

A conflict exists between lawmakers and the courts: Can the legislature dictate what constitutes an expert? This has not been answered.

Traditionally, courts have considered it within their purview to determine who can qualify as an expert. In addition, the judge must determine whether the "science" the witness will discuss is legitimate or junk. The US Supreme Court has described the trial judge in this circumstance as a "gatekeeper."

The ability to allow experts to testify goes to the heart of constitutional due process protections. The courts view this as a judicial issue and not one for the legislature. The 1997 Connecticut case of State v. Porter addressed this question:

"[T]he judge's role is to keep unreliable and irrelevant information from the jury because of its inability to assist in factual determinations, its potential to create confusion, and its lack of probative value." The judge must make "a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid, and whether that reasoning or methodology can be applied to the facts in issue."

This natural conflict between the judiciary and the legislature poses the greatest threat to the limitation of expert testimony by legislatures. And, in fact, this was recently observed in Arkansas.

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