MICRA Legislation Passes Senate Judiciary Committee and Off Senate Floor

Wednesday, AB 35 (Reyes) passed out of the Senate Judiciary Committee 11-0. You may view the committee’s analysis here. Thursday, the bill was fast-tracked to the Senate Floor for a vote, which was 37-1 (Senator Nielsen voting no; Senators Hertzberg and Wilk not voting). AB 35 is heading back to the Assembly for concurrence on the Senate amendments, and will possibly be heard as early as next Tuesday in the Assembly Judiciary Committee. AB 35 could be to the Governor by the end of next week.

In case you are wondering if AB 35 can still be amended, the answer is no. What legislative leadership allowed to happen was the amendment of a bill already in the second house, which means the only opportunity to amend it was in the Senate Judiciary Committee or on the Senate Floor. Both of these opportunities have now passed. It is now back in its house of origin and, as such, cannot be amended. The only action the Assembly is now allowed is to concur or non-concur on the Senate amendments.

The California Medical Association (CMA), along with a coalition of others, issued a floor alert in support of the measure. After the vote in the Senate Judiciary Committee, the CMA issued the following press release: 

“California Medical Association reported that “President Robert E. Wailes testified this week in the California Senate Judiciary Committee in support of AB 35— jointly authored by Assembly Majority Leader Eloise Reyes and Senator Tom Umberg—which will implement the historic agreement reached by Californians Allied for Patient Protection (CAPP) and the Consumer Attorneys of California to modernize the Medical Injury Compensation Reform Act (MICRA). The modernized framework, which unanimously passed out of the committee, will ensure that health care is accessible and affordable, while balancing compensatory justice for injured patients 

“This MICRA Modernization legislation is an important compromise that will extend the long-term predictability and affordability of medical liability insurance, while providing fair compensation to injured patients,” Dr. Wailes told the committee.

Over the years, California’s physician and provider communities have repeatedly defended MICRA through expensive battles at the ballot, in the courtroom and in the legislature. This year, with the so-called Fairness for Injured Patients Act (FIPA) slated for the November 2022 ballot, we were again facing another costly initiative battle that could have obliterated existing safeguards against out-of-control medical lawsuits and resulted in skyrocketing health care costs.

Under this groundbreaking policy, the rights of patients will be protected, and the essential guardrails established under MICRA that ensure broad based access to care remain firmly in place for patients and providers alike.

The modernized framework also establishes new protections for benevolent gestures and statements of fault. AB 35 establishes new evidentiary protection for all pre-litigation expressions of sympathy, regret or benevolence, including statements of fault, by a health care provider.

“This will make it possible for physicians and patients to have a full and open conversation after an unforeseen outcome and will lead to greater accountability, patient safety and trust,” said Dr. Wailes. “Often, a patient’s decision to file a medical malpractice lawsuit is triggered by a failure in communication, not negligence, and this bill will facilitate the important conversations patients and providers want to have.”

The proposal reflected in this legislation strikes a prudent and patient-focused balance between fair compensation to injured patients and the need for universal, high-quality, and cost-effective health care. More significantly, in the shadow of the most sweeping public health crisis in a century, it demonstrates a unifying willingness to put the interests of California patients ahead of divisive political positions. For more information, see cmadocs.org/micra2022.”

CSAP Town Hall

Last night, CSAP held a town hall for interested members on AB 35. Dr. Tim Murphy of SDPS graciously walked webinar participants through slides provided by the CMA as to their logic in deciding to negotiate the language for, and support of, AB 35. CMA has asked that CSAP not distribute the PowerPoint. However, we can tell you that the CMA and other groups did perform polling and engage focus groups regarding MICRA, and that the findings were consistent enough to be cause for concern about the likelihood of the FIPA Initiative passing in November. What polling and focus groups found was:

  • Voters have no knowledge of MICRA or the cap on non-economic damages.
  • Hearing that the cap was put in place in 1975 and not adjusted since results in voter support for the measure.
  • Sympathy for health care professionals does not necessarily transfer to an automatic “no” vote as it has in the past.
  • Emotive stories from proponents are effective at creating sympathy and a yes vote.

Now What? 

The District Branches and CSAP Board must consider recent events and decide how to best move forward. CSAP has already received multiple ideas to consider for future advocacy and public awareness in response to AB 35. For example:

  • Infographics for social media, and for private practice psychiatrists to use, explaining the increased cost of psychiatry in California (a psychiatrist could then, for example, link to this on their website to explain increased rates)
  • Seek to increase the settlement dollar threshold for medical board investigations 
  • Remove CURES investigations by the medical board for physicians who are investigated by the medical board for non-prescribing related settlements 
  • Amend state law to include protections against attorneys who bring frivolous cases
  • Amend state law so that cases can only be settled with physician consent (currently, state law allows insurers to settle without consent from a physician and for that settlement to stand

If you have other ideas, please email Paul Yoder

The most recent SCPS Newsletter ran a piece on AB 35 (see p. 5) that may be of interest to members from the other District Branches. 

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