California's Cap on Medical Malpractice Damages Needs Surgery

By Brian S. Kabateck '89, Guest Alumni Blogger

Most lawyers don't know that in 1975 Governor Brown signed a law that radically changed medical malpractice litigation in California. That law, known as MICRA (Medical Injury Compensation Reform Act), was born in a time when most doctors were in private practice and the insurance industry was largely uncontrolled and financially crushing doctors by boosting malpractice premiums. Among other reforms, MICRA capped any pain and suffering award at $250,000. In the 38 years since MICRA became law, there has been no change whatsoever in the $250,000 cap - and during the same timeframe, inflation has dramatically affected the value of $250,000. In fact, if you apply a basic cost of living factor for inflation, that same $250,000 would now approach approximately $1.1 million. While under MICRA there is no artificial cap on economic losses such as medical care, life care and lost earning, its $250,000 cap on non-economic damages intended to offset the real costs of human suffering creates an unfair situation in cases involving the loss of a child, a non-income earning spouse or a retired person. Quite simply, the life of a child lost because of medical error is only worth $250,000 in California. Outrageous!

Consider also that the entire practice of medicine has changed in the last 38 years. Most Californians who are insured get their medical care though managed care like an HMO or Kaiser. Gone are the days when private practitioners where the norm. Many patients feel like doctors are restricted in making decisions by administrators and other people who are not doctors but are often making the decisions for them. Patient safety is a serious concern in the United States today. It is estimated that more than 300,000 people die every year from medical errors. To put that number into context, medical errors are the third leading cause of death behind heart disease and cancer. It's the equivalent of two full 747s crashing every day. In California, an estimated 37,500 people die from medical errors every year. Meanwhile, doctors have a more lenient discipline system than lawyers; many doctors go unchecked while wrestling with addiction to alcohol and prescription drugs. The media seem to be reporting stories every day of serious medical errors and negligence. Michael Jackson is the most famous victim of medical negligence.

Our tort system does act as a deterrent. We know that cars are safer because of product liability cases, insurance companies are held accountable when they fail to pay legitimate claims, Big Pharma is responsible for bad and dangerous drugs - the list goes on and on. There are no caps on those other industries. In fact, no profession has artificial caps in place except the medical field. Eliminating the cap entirely and letting juries decide the level of damages would be the best approach, but at a minimum the cap should be adjusted to account for inflation and then adjusted regularly to keep up with the cost of living. Even the original rationale for the cap no longer applies. Shortly after the current California insurance commissioner took office, he forced all admitted malpractice insurance firms to refund premiums because medical malpractice coverage is the most profitable line of insurance in the state. Beyond such administrative steps, the notion of caps is fundamentally contrary to our legal system, the Seventh Amendment and the entire idea that one group shouldn't receive special treatment over others.

We teach a tort system in law schools across the country that is free of artificial limitations on damages. In fact, our entire constitutional civil justice system is based on the notion that juries are best equipped to determine the value of a plaintiff's claim. We need to reconsider the MICRA caps.

Brian S. Kabateck is the founding and managing partner of Kabateck Brown Kellner LLP and president of the Consumer Attorneys of California.

Disability and Sports

By Associate Dean Michael Waterstone

On Friday, the United States Department of Education, Office for Civil Rights, issued a guidance detailing the obligations of public elementary and secondary schools to allow students with disabilities to have equal opportunities to participate in extracurricular programs, primarily sporting and athletic activities. I wrote my first law review article on the case of Casey Martin, a golfer with a disability who requested the use of a golf cart in PGA play as a reasonable accommodation under Title III of the Americans with Disabilities Act. Martin eventually won in the Supreme Court.

My first impression about the Education Department's guidance was (happy) surprise that it generated so much media attention (it was picked up in numerous national outlets, including here, here, and here). Sports are important in our society, and the benefits of youth participation in athletic activities are well documented. Too often, as the United States Government Accountability Office found in a recent report, students with disabilities have been excluded from these benefits. So I am gratified that the US Department of Education is using its platform to provide leadership in this area.

But I think it is too early to know exactly what this guidance will mean. Disability advocates are comparing it to an earlier Education Department guidance under Title IX instructing schools to treat female athletics on par with male teams. That effort transformed our society, and every time I coach my six-year old daughter's softball or soccer team I am grateful for it. I am hopeful, but not necessarily optimistic, that this will be the ADA equivalent. This guidance does not break any new ground: it merely clarifies existing legal obligations under Section 504 of the Rehabilitation Act of 1973, which is hardly a new law. The Individuals with Disabilities Education Act, which also requires schools to grapple with the integration of students with disabilities into school life, has absolutely been a transformative statute. But implementation has been slow, and the law is still underenforced.

The Case of Lady Gaga and California Political Fundraising

By Associate Clinical Professor Jessica Levinson

Wondering if legislators ever go back to their offices and "just dance?" Don't think your elected officials have a "poker face?" Dubious as to whether your lawmakers were "born this way?" Curious as to whether, just like us, our lawmakers sometimes have a "bad romance?"

We may not know the answer to those questions, but we do know that State Senators Ricardo Lara and Ron Calderon were at Staples Center this past weekend to take in a Lady Gage concert. Is this official business?

Well, it's officially a fundraising event for them. Lara is running for re-election to the Senate and Calderon is running for state controller next year. The two democratic senators were slated to hold a joint campaign fundraiser at the concert. Contributors who gave $3,900 were rewarded with a ticket to the concert and a night in a nearby hotel.

Lara and Calderon's joint fundraiser at Lady Gaga's concert likely says less about their devotion (or lack thereof) to the performer than it does about their desire to raise large campaign donations at popular venues. In our current system, in which campaign contributions to candidates are limited, but expenditures by candidate campaigns are not, the third for campaign funds is all but unquenchable. Put another way, once candidates get on the fundraising treadmill, it is difficult to see when and how they will ever get off that treadmill.

The seemingly endless fundraising race is not, of course, the fault of the candidates and officeholders. The current legal framework breeds the almost ceaseless need for campaign cash. This actually harms not only the public, but also officeholders who spend so much of their time fundraising rather than legislating or governing.
Here is hoping that Lady Gaga's next hit is about that sexy topic we call "political reform."

This post originally appeared on KCET-TV's SoCal Focus blog, for which the author writes regularly.

Introducing Our Inaugural Guest Alumni Blogger

This month, we are delighted to roll out what will be a regular feature of our blog: a guest alumni blogger. Our alumni network at Loyola is an integral part of our law school. And I can think of no one better to be our inaugural guest alumni blogger than Brian Kabateck. Brian is founding and managing partner at Kabateck Brown Kellner LLP. He is an important voice in consumer rights and the current president of the Consumer Attorneys of California. He is also a good friend of our law school and someone whom we are proud to call our own. Over the next month, we look forward to his observations on consumer protection and other areas.

-Associate Dean Michael Waterstone-

Everyday Litigants Will Suffer with Court Funding Provided in Gov. Brown's Proposed Budget

By Brian S. Kabateck '89, Guest Alumni Blogger

In a mix of news both bad and slightly less bad, the governor's proposed 2013-14 state budget slashes $200 million in court construction funding but mostly maintains the status quo for court operations already battered by years of deep cuts. The governor's finance team is to be commended for avoiding deep operational cuts that would have devastated California's courts. However, the loss of $200 million in construction money needed to maintain the state's aging court infrastructure amounts to more bad news for the justice system. Even though the budget proposal appeared to spare the courts from a fresh round of deep operational cuts for 2013-14, the system is already reeling from $1.2 billion in General Fund cuts over the past five years.

At first blush, the governor's new budget appears to maintain the status quo, but with the courts absorbing more than $1 billion in cuts over the past five years, the status quo isn't acceptable. The status quo has been a disaster. A prime example is in Los Angeles County, which during the current fiscal year has been forced to make upwards of $85 million in cuts to programs that have resulted in the ongoing closure of 10 full courthouses scattered around the region and other operational changes that have the net effect of creating long lines for basic services and slowing the administration of justice. The old axiom is justice delayed is justice denied. Well, lately there has been a lot of justice being denied all over the state.

The cuts of recent years have hit especially hard at some of the state's most vulnerable citizens - women, children, the poor, veterans, the disabled - who utilize family law and other specialty-court operations that have been among the hardest hit by years of budgetary slashing. We are facing a crisis. Courts are an important safety net for society, protecting our most vulnerable. This crisis is about real people who need help solving real problems. Even the most basic functions like paying a ticket or resolving a rental dispute have been turned into unbelievable inconveniences that cost average citizens both time and money. Staffing cuts at many courthouses have led to swelling lines and frayed tempers as the public has tried to tap the most basic services. In Los Angeles, people queued up to settle traffic tickets have in some instances been turned away at day's end and told to come back the next day. Such problems stand to grow even worse as the county grapples with more than $150 million in court cuts in the last couple years. Already, 10 courthouses in Los Angeles County are in the process of being shut down and services are increasingly being centralized in a single courthouse, threatening to make a bad situation even worse.

Expert Analysis of Standard Fire Insurance Co. v. Knowles

Professor Georgene Vairo, an expert on class-action litigation who teaches and writes in the areas of mass torts, weighs in on Standard Fire Insurance Co. v. Knowles, argued before the Supreme Court on Jan. 7:

Key Issue: Can a plaintiff stipulate to damages below CAFA's federal jurisdictional threshold of $5 million where the aggregate claims of all class members exceed that amount?

Key Takeaway: The case comes down to a choice between allowing plaintiffs to openly manipulate CAFA's jurisdictional requirements, as well as scaling back the "master of the complaint" rule.

Prediction: I hope Justice Kagan writes the majority opinion. She reminded the defendant that there are two better options than requiring removal at this time. If the case is worth far more than $5 million, then the plaintiff is not an adequate representative of the class. If the plaintiff tries to play around once back in state court and get more than $5 million, then the defendant can remove again.

What to Expect as the Supreme Court Takes Up Marriage

By Associate Professor Douglas NeJaime

This op-ed originally appeared in The Advocate.

The Supreme Court has decided to hear two cases relating to marriage equality. The first, United States v. Windsor, raises the constitutionality of section 3 of the federal Defense of Marriage Act, which denies federal recognition to same-sex couples' marriages. The second, Hollingsworth v. Perry, involves the constitutionality of California's Proposition 8, the state constitutional amendment banning marriage for same-sex couples. After the court's announcement, many commentators and some LGBT activists speculated that the court's ultimate decision in the cases would bring the end of marriage-based discrimination against same-sex couples. Some expect the justices to extend the fundamental right to marry to same-sex couples. Others are focusing on equal protection, anticipating a ruling that sexual orientation classifications merit heightened scrutiny. Such a decision would immediately cast doubt on any form of sexual orientation discrimination, including the marriage prohibitions that a vast majority of states maintain.

But this might all be wishful thinking.

Yes, the court might have taken the Windsor case because the Second Circuit Court of Appeals applied heightened scrutiny to sexual orientation classifications, whereas the First Circuit's Gill v. Office of Personnel Management decision applied only rational basis review. But, more likely, the court might have taken Windsor and not Gill because all nine justices could participate in the case. It was widely believed that Justice Kagan would have recused herself from Gill given her role in the Obama administration during deliberations regarding that case.

Read the complete story here.

Attraverso Review: Debt: The First 5,000 Years by David Graeber

By Professor Jeffery Atik

Graeber's Debt: The First 5,000 Years is a grand intellectual project and a call for action. Graeber's book moves debt to the center of political discourse.
America is built on debt. Indeed, assuming our fair share of debt can be seen as an American duty. We obtain housing, education, transport and medical services through our use of credit -- and as such we spend most of our lives deeply indebted. The root of our notion of freedom (echoed, as Graeber points out, in religious imagery) is freedom from debt -- and if this is so, then by no means is America the land of the free.

Graeber's overview of 5,000 years of debt demonstrates that debt is not a neutral social instrument. Rather debt is first and foremost an institution allowing for the exercise of power. Debt is the foundation of hierarchy and hence much social structure.

Read my full-length review of David Graeber's Debt in the Los Angeles Review of Books.

Follow the author on Twitter @jefferyatik.