Monday, April 6, 2020

The Medical Injury Compensation Reform Act of 1975 (MICRA) put a cap of $250,000 on pain and suffering damages in cases involving medical malpractice. MICRA became law in 1975 in response to a perceived crisis in the rising cost of premiums for medical malpractice insurance.

MICRA caps compensation for “non-economic” damages. These damages include loss of limbs, severe disfigurement, loss of fertility, continuing pain, and loss of a parent.  In the March 2013 edition of Plaintiff Magazine, Bruce G. Fagel evaluates “Damages in Medical Malpractice Cases under MICRA.”

Damages are part of the initial determination of an attorney on whether to take a medical-malpractice case. MICRA create different plaintiffs in medical malpractice cases. Some plaintiffs suffer only non-economic damages.  These plaintiffs are those in wrongful-death claims, where the heirs have no claim for loss of income from the decedent, such as elderly or children. The injuries of these plaintiffs are limited because there is no significant loss of earnings or medical expenses when a person dies. The issues of negligence and causation are often disputed in wrongful-death claims.  Experts will often debate over a pre-existing condition of the deceased.

Another class of plaintiffs are those in wrongful-death claims of an adult where the heirs, such as a spouse or child, establishes loss of financial support, and the plaintiffs with long-term injury that impacts loss of earnings and future medical care costs. The economic loss to the heirs in a wrongful-death claim puts a medical malpractice case in a different category from a non-economic damages claim. MICRA does not restrict or limit recovery of economic damages.  Obtaining economic damages is not dependent on the testimony of experts who testify such losses are “reasonably certain” to happen in the future. The defense in such cases may contest each element of economic losses, including life expectancy.

To research damages, an attorney can go through data from the insurance industry. Some attorneys decline cases where the plaintiffs do not have much of any remedy. This is because most physicians and medical facilities have liability-insurance policies with duties to defend and indemnify. Even if a defense attorney loses at trial, the indemnity payment is limited, and less than the limit of the insurance. Physicians may be reluctant to provide consent to settle before trial. As to hospitals, they may not want to settle since hospital insurance policies have a self-insured deductible that is generally more than $250,000.  Any settlement must often come from the hospital’s own funds.

Read the Article Here