Health Administration Responsibility Project
California's MICRA law


When it is impossible to sue the HMO directly, as when it is protected by ERISA, it may be possible to sue a negligent treating doctor for medical malpractice, and hold the HMO vicariously liable for the doctor's actions.

Unfortunately in California, this approach has its own problems, in the form of the Medical Injury Compensation Reform Act of 1975 (MICRA). This act limits damages recoverable in medical malpractice suits as follows:

$250,000 cap on non-economic damages
CC sec. 3333.2 says that in any action against a health care provider for professional negligence, non-economic damages, eg: for pain and suffering, may not exceed $250,000. This may make it hard to get a lawyer interested in the case.
Collateral Source Rule abrogated
In most tort cases the common law "Collateral Source Rule", makes it reversible error for the defendant to tell the jury how much of your damages have been paid by someone else, eg: an insurer, family member, etc.
However, CC sec. 3333.1 lets them tell the jury in MedMal cases, encouraging the jury to cut your recovery by that amount.
Installment Payments
CCP sec. 667.6 allows future damages over $50,000 to be paid in installments instead of a lump sum, with the payments to stop if the plaintiff dies. This is a disadvantage to the plaintiff and his family, as the annuity is much cheaper than the lump-sum would be.
Punitive Damages
The initial complaint cannot ask for punitive damages. Under CCP sec. 425.13, a separate motion must be made at the earlier of 2 years after filing or 9 months before the first scheduled trial date, showing a substantial probability that you'll prevail.

Other ways MICRA attempts to inhibit Malpractice suits

90 day notice before filing suit (CCP sec. 364(a))
Statute of Limitations. Suit must be filed within one year from the discovery of an injury and within three years from injury. (CCP sec. 340.5.)
Limits on lawyers contingency fees (BPC sec. 6146):

What can you do to minimize the disadvantages of MICRA?



CCP sec. 340.5.  In an action for injury or death against a health care
provider based upon such person's alleged professional negligence,
the time for the commencement of action shall be three years after
the date of injury or one year after the plaintiff discovers, or
through the use of reasonable diligence should have discovered, the
injury, whichever occurs first.  In no event shall the time for
commencement of legal action exceed three years unless tolled for any
of the following:  (1) upon proof of fraud, (2) intentional
concealment, or (3) the presence of a foreign body, which has no
therapeutic or diagnostic purpose or effect, in the person of the
injured person.  Actions by a minor shall be commenced within three
years from the date of the alleged wrongful act except that actions
by a minor under the full age of six years shall be commenced within
three years or prior to his eighth birthday whichever provides a
longer period.  Such time limitation shall be tolled for minors for
any period during which parent or guardian and defendant's insurer or
health care provider have committed fraud or collusion in the
failure to bring an action on behalf of the injured minor for
professional negligence.
   For the purposes of this section:
   (1) "Health care provider" means any person licensed or certified
pursuant to Division 2 (commencing with Section 500) of the Business
and Professions Code, or licensed pursuant to the Osteopathic
Initiative Act, or the Chiropractic Initiative Act, or licensed
pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2
of the Health and Safety Code; and any clinic, health dispensary, or
health facility, licensed pursuant to Division 2 (commencing with
Section 1200) of the Health and Safety Code.  "Health care provider"
includes the legal representatives of a health care provider;
   (2) "Professional negligence" means a negligent act or omission to
act by a health care provider in the rendering of professional
services, which act or omission is the proximate cause of a personal
injury or wrongful death, provided that such services are within the
scope of services for which the provider is licensed and which are
not within any restriction imposed by the licensing agency or
licensed hospital.



CCP sec. 364.  (a) No action based upon the health care provider's
professional negligence may be commenced unless the defendant has
been given at least 90 days' prior notice of the intention to
commence the action.
   (b) No particular form of notice is required, but it shall notify
the defendant of the legal basis of the claim and the type of loss
sustained, including with specificity the nature of the injuries
suffered.
   (c) The notice may be served in the manner prescribed in Chapter 5
(commencing with Section 1010) of Title 14 of Part 2.
   (d) If the notice is served within 90 days of the expiration of
the applicable statute of limitations, the time for the commencement
of the action shall be extended 90 days from the service of the
notice.
   (e) The provisions of this section shall not be applicable with
respect to any defendant whose name is unknown to the plaintiff at
the time of filing the complaint and who is identified therein by a
fictitious name, as provided in Section 474.
   (f) For the purposes of this section:
   (1) "Health care provider" means any person licensed or certified
pursuant to Division 2 (commencing with Section 500) of the Business
and Professions Code, or licensed pursuant to the Osteopathic
Initiative Act, or the Chiropractic Initiative Act, or licensed
pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2
of the Health and Safety Code; and any clinic, health dispensary, or
health facility, licensed pursuant to Division 2 (commencing with
Section 1200) of the Health and Safety Code.  "Health care provider"
includes the legal representatives of a health care provider;
   (2) "Professional negligence" means negligent act or omission to
act by a health care provider in the rendering of professional
services, which act or omission is the proximate cause of a personal
injury or wrongful death, provided that such services are within the
scope of services for which the provider is licensed and which are
not within any restriction imposed by the licensing agency or
licensed hospital.


CCP 364.1.  No action based upon the professional negligence of a
physician and surgeon or doctor of podiatric medicine may be
commenced unless the 90-day prior notice required by Section 364 is
also sent to the Medical Board of California or the Board of
Podiatric Medicine, as applicable, at the same time it is sent to the
defendant.  The Medical Board of California or the Board of
Podiatric Medicine shall maintain the notice as a confidential part
of a potential investigation file.




CCP sec. 425.13.  (a) In any action for damages arising out of the
professional negligence of a health care provider, no claim for
punitive damages shall be included in a complaint or other pleading
unless the court enters an order allowing an amended pleading that
includes a claim for punitive damages to be filed.  The court may
allow the filing of an amended pleading claiming punitive damages on
a motion by the party seeking the amended pleading and on the basis
of the supporting and opposing affidavits presented that the
plaintiff has established that there is a substantial probability
that the plaintiff will prevail on the claim pursuant to Section 3294
of the Civil Code.  The court shall not grant a motion allowing the
filing of an amended pleading that includes a claim for punitive
damages if the motion for such an order is not filed within two years
after the complaint or initial pleading is filed or not less than
nine months before the date the matter is first set for trial,
whichever is earlier.
   (b) For the purposes of this section, "health care provider" means
any person licensed or certified pursuant to Division 2 (commencing
with Section 500) of the Business and Professions Code, or licensed
pursuant to the Osteopathic Initiative Act, or the Chiropractic
Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with
Section 1440) of Division 2 of the Health and Safety Code; and any
clinic, health dispensary, or health facility, licensed pursuant to
Division 2 (commencing with Section 1200) of the Health and Safety
Code.  "Health care provider" includes the legal representatives of a
health care provider.




CCP sec. 667.7.  (a) In any action for injury or damages against a provider
of health care services, a superior court shall, at the request of
either party, enter a judgment ordering that money damages or its
equivalent for future damages of the judgment creditor be paid in
whole or in part by periodic payments rather than by a lump-sum
payment if the award equals or exceeds fifty thousand dollars
($50,000) in future damages.  In entering a judgment ordering the
payment of future damages by periodic payments, the court shall make
a specific finding as to the dollar amount of periodic payments which
will compensate the judgment creditor for such future damages.  As a
condition to authorizing periodic payments of future damages, the
court shall require the judgment debtor who is not adequately insured
to post security adequate to assure full payment of such damages
awarded by the judgment.  Upon termination of periodic payments of
future damages, the court shall order the return of this security, or
so much as remains, to the judgment debtor.
   (b) (1) The judgment ordering the payment of future damages by
periodic payments shall specify the recipient or recipients of the
payments, the dollar amount of the payments, the interval between
payments, and the number of payments or the period of time over which
payments shall be made.  Such payments shall only be subject to
modification in the event of the death of the judgment creditor.
   (2) In the event that the court finds that the judgment debtor has
exhibited a continuing pattern of failing to make the payments, as
specified in paragraph (1), the court shall find the judgment debtor
in contempt of court and, in addition to the required periodic
payments, shall order the judgment debtor to pay the judgment
creditor all damages caused by the failure to make such periodic
payments, including court costs and attorney's fees.
   (c) However, money damages awarded for loss of future earnings
shall not be reduced or payments terminated by reason of the death of
the judgment creditor, but shall be paid to persons to whom the
judgment creditor owed a duty of support, as provided by law,
immediately prior to his death.  In such cases the court which
rendered the original judgment, may, upon petition of any party in
interest, modify the judgment to award and apportion the unpaid
future damages in accordance with this subdivision.
   (d) Following the occurrence or expiration of all obligations
specified in the periodic payment judgment, any obligation of the
judgment debtor to make further payments shall cease and any security
given, pursuant to subdivision (a) shall revert to the judgment
debtor.
   (e) As used in this section:
   (1) "Future damages" includes damages for future medical
treatment, care or custody, loss of future earnings, loss of bodily
function, or future pain and suffering of the judgment creditor.
   (2) "Periodic payments" means the payment of money or delivery of
other property to the judgment creditor at regular intervals.
   (3) "Health care provider" means any person licensed or certified
pursuant to Division 2 (commencing with Section 500) of the Business
and Professions Code, or licensed pursuant to the Osteopathic
Initiative Act, or the Chiropractic Initiative Act, or licensed
pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2
of the Health and Safety Code; and any clinic, health dispensary, or
health facility, licensed pursuant to Division 2 (commencing with
Section 1200) of the Health and Safety Code.  "Health care provider"
includes the legal representatives of a health care provider.
   (4) "Professional negligence" means a negligent act or omission to
act by a health care provider in the rendering of professional
services, which act or omission is the proximate cause of a personal
injury or wrongful death, provided that such services are within the
scope of services for which the provider is licensed and which are
not within any restriction imposed by the licensing agency or
licensed hospital.
   (f) It is the intent of the Legislature in enacting this section
to authorize the entry of judgments in malpractice actions against
health care providers which provide for the payment of future damages
through periodic payments rather than lump-sum payments.  By
authorizing periodic payment judgments, it is the further intent of
the Legislature that the courts will utilize such judgments to
provide compensation sufficient to meet the needs of an injured
plaintiff and those persons who are dependent on the plaintiff for
whatever period is necessary while eliminating the potential windfall
from a lump-sum recovery which was intended to provide for the care
of an injured plaintiff over an extended period who then dies shortly
after the judgment is paid, leaving the balance of the judgment
award to persons and purposes for which it was not intended.  It is
also the intent of the Legislature that all elements of the periodic
payment program be specified with certainty in the judgment ordering
such payments and that the judgment not be subject to modification at
some future time which might alter the specifications of the
original judgment.





CC sec. 3333.1.  (a) In the event the defendant so elects, in an action for
personal injury against a health care provider based upon
professional negligence, he may introduce evidence of any amount
payable as a benefit to the plaintiff as a result of the personal
injury pursuant to the United States Social Security Act, any state
or federal income disability or worker's compensation act, any
health, sickness or income-disability insurance, accident insurance
that provides health benefits or income-disability coverage, and any
contract or agreement of any group, organization, partnership, or
corporation to provide, pay for, or reimburse the cost of medical,
hospital, dental, or other health care services.  Where the defendant
elects to introduce such evidence, the plaintiff may introduce
evidence of any amount which the plaintiff has paid or contributed to
secure his right to any insurance benefits concerning which the
defendant has introduced evidence.
   (b) No source of collateral benefits introduced pursuant to
subdivision (a) shall recover any amount against the plaintiff nor
shall it be subrogated to the rights of the plaintiff against a
defendant.
   (c) For the purposes of this section:
   (1) "Health care provider" means any person licensed or certified
pursuant to Division 2 (commencing with Section 500) of the Business
and Professions Code, or licensed pursuant to the Osteopathic
Initiative Act, or the Chiropractic Initiative Act, or licensed
pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2
of the Health and Safety Code; and any clinic, health dispensary, or
health facility, licensed pursuant to Division 2 (commencing with
Section 1200) of the Health and Safety Code.  "Health care provider"
includes the legal representatives of a health care provider;
   (2) "Professional negligence" means a negligent act or omission to
act by a health care provider in the rendering of professional
services, which act or omission is the proximate cause of a personal
injury or wrongful death, provided that such services are within the
scope of services for which the provider is licensed and which are
not within any restriction imposed by the licensing agency or
licensed hospital.






CC sec. 3333.2.  (a) In any action for injury against a health care provider
based on professional negligence, the injured plaintiff shall be
entitled to recover noneconomic losses to compensate for pain,
suffering, inconvenience, physical impairment, disfigurement and
other nonpecuniary damage.
   (b) In no action shall the amount of damages for noneconomic
losses exceed two hundred fifty thousand dollars ($250,000).
   (c) For the purposes of this section:
   (1) "Health care provider" means any person licensed or certified
pursuant to Division 2 (commencing with Section 500) of the Business
and Professions Code, or licensed pursuant to the Osteopathic
Initiative Act, or the Chiropractic Initiative Act, or licensed
pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2
of the Health and Safety Code; and any clinic, health dispensary, or
health facility, licensed pursuant to Division 2 (commencing with
Section 1200) of the Health and Safety Code.  "Health care provider"
includes the legal representatives of a health care provider;
   (2) "Professional negligence" means a negligent act or omission to
act by a health care provider in the rendering of professional
services, which act or omission is the proximate cause of a personal
injury or wrongful death, provided that such services are within the
scope of services for which the provider is licensed and which are
not within any restriction imposed by the licensing agency or
licensed hospital.



CC sec. 3428.  (a) For services rendered on or after January 1, 2001, a
health care service plan or managed care entity, as described in
subdivision (f) of Section 1345 of the Health and Safety Code, shall
have a duty of ordinary care to arrange for the provision of
medically necessary health care service to its subscribers and
enrollees, where the health care service is a benefit provided under
the plan, and shall be liable for any and all harm legally caused by
its failure to exercise that ordinary care when both of the following
apply:
   (1) The failure to exercise ordinary care resulted in the denial,
delay, or modification of the health care service recommended for, or
furnished to, a subscriber or enrollee.
   (2) The subscriber or enrollee suffered substantial harm.
   (b) For purposes of this section:  (1) substantial harm means loss
of life, loss or significant impairment of limb or bodily function,
significant disfigurement, severe and chronic physical pain, or
significant financial loss; (2) health care services need not be
recommended or furnished by an in-plan provider, but may be
recommended or furnished by any health care provider practicing
within the scope of his or her practice; and (3) health care services
shall be recommended or furnished at any time prior to the inception
of the action, and the recommendation need not be made prior to the
occurrence of substantial harm.
   (c) Health care service plans and managed care entities are not
health care providers under any provision of law, including, but not
limited to, Section 6146 of the Business and Professions Code,
Sections 3333.1 or 3333.2 of this code, or Sections 340.5, 364,
425.13, 667.7, or 1295 of the Code of Civil Procedure.
   (d) A health care service plan or managed care entity shall not
seek indemnity, whether contractual or equitable, from a provider for
liability imposed under subdivision (a).  Any provision to the
contrary in a contract with providers is void and unenforceable.
   (e) This section shall not create any liability on the part of an
employer or an employer group purchasing organization that purchases
coverage or assumes risk on behalf of its employees or on behalf of
self-funded employee benefit plans.
   (f) Any waiver by a subscriber or enrollee of the provisions of
this section is contrary to public policy and shall be unenforceable
and void.
   (g) This section does not create any new or additional liability
on the part of a health care service plan or managed care entity for
harm caused that is attributable to the medical negligence of a
treating physician or other treating health care provider.
   (h) This section does not abrogate or limit any other theory of
liability otherwise available at law.
   (i) This section shall not apply in instances where subscribers or
enrollees receive treatment by prayer, consistent with the
provisions of subdivision (a) of Section 1270 of the Health and
Safety Code, in lieu of medical treatment.
   (j) Damages recoverable for a violation of this section include,
but are not limited to, those set forth in Section 3333.
   (k) (1) A person may not maintain a cause of action pursuant to
this section against any entity required to comply with any
independent medical review system or independent review system
required by law unless the person or his or her representative has
exhausted the procedures provided by the applicable independent
review system.
   (2) Compliance with paragraph (1) is not required in a case where
either of the following applies:
   (A) Substantial harm, as defined in subdivision (b), has occurred
prior to the completion of the applicable review.
   (B) Substantial harm, as defined, in subdivision (b), will
imminently occur prior to the completion of the applicable review.
   (3) This subdivision shall become operative only if Senate Bill
189 and Assembly Bill 55 of the 1999-2000 Regular Session are also
enacted and enforceable.
   (l) If any provision of this section or the application thereof to
any person or circumstance is held to be unconstitutional or
otherwise invalid or unenforceable, the remainder of the section and
the application of those provisions to other persons or circumstances
shall not be affected thereby.






BPC sec. 6146.  (a) An attorney shall not contract for or collect a
contingency fee for representing any person seeking damages in
connection with an action for injury or damage against a health care
provider based upon such person's alleged professional negligence in
excess of the following limits:
   (1) Forty percent of the first fifty thousand dollars ($50,000)
recovered.
   (2) Thirty-three and one-third percent of the next fifty thousand
dollars ($50,000) recovered.
   (3) Twenty-five percent of the next five hundred thousand dollars
($500,000) recovered.
   (4)  Fifteen percent of any amount on which the recovery exceeds
six hundred thousand dollars ($600,000).
   The limitations shall apply regardless of whether the recovery is
by settlement, arbitration, or judgment, or whether the person for
whom the recovery is made is a responsible adult, an infant, or a
person of unsound mind.
   (b) If periodic payments are awarded to the plaintiff pursuant to
Section 667.7 of the Code of Civil Procedure, the court shall place a
total value on these payments based upon the projected life
expectancy of the plaintiff and include this amount in computing the
total award from which attorney's fees are calculated under this
section.
   (c) For purposes of this section:
   (1) "Recovered" means the net sum recovered after deducting any
disbursements or costs incurred in connection with prosecution or
settlement of the claim.  Costs of medical care incurred by the
plaintiff and the attorney's office-overhead costs or charges are not
deductible disbursements or costs for such purpose.
   (2) "Health care provider" means any person licensed or certified
pursuant to Division 2 (commencing with Section 500), or licensed
pursuant to the Osteopathic Initiative Act, or the Chiropractic
Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with
Section 1440) of Division 2 of the Health and Safety Code; and any
clinic, health dispensary, or health facility, licensed pursuant to
Division 2 (commencing with Section 1200) of the Health and Safety
Code.  "Health care provider" includes the legal representatives of a
health care provider.
   (3) "Professional negligence" is a negligent act or omission to
act by a health care provider in the rendering of professional
services, which act or omission is the proximate cause of a personal
injury or wrongful death, provided that the services are within the
scope of services for which the provider is licensed and which are
not within any restriction imposed by the licensing agency or
licensed hospital.






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