From Lauren Simon, MD, MPH, FAAFP, CAFP President
After careful and thorough debate and consideration of the policy and politics, the CAFP Board of Directors has voted to take a support position on AB 35 (Reyes and Umberg). AB 35 keeps California’s Medical Injury Compensation Reform Act’s (MICRA) essential guardrails solidly in place for patients and providers alike while implementing a predictable increase to limits on non-economic damages in medical negligence cases starting January 1, 2023, with gradual increases thereafter.
Importantly, AB 35 would preclude a costly ballot initiative – the so-called “Fairness for Injured Patients Act” – which was slated for the November 2022 ballot. If approved by voters, this initiative would effectively eliminate MICRA’s cap on non-economic damages by creating a new, broadly-defined category of injuries not subject to MICRA’s cap on non-economic damages. It would have also eliminated MICRA’s limit on attorney’s contingency fees and require providers to pay plaintiff’s attorney’s fees.
The initiative would have at least doubled malpractice premiums overnight and would have had a chilling impact on the entire health care system, creating a trickle-down effect that would be borne primarily by low-income patients who would face higher costs and restricted access to care. The non-partisan California Legislative Analyst’s Office (LAO) said this measure would have increased public health care costs by “hundreds of millions” of dollars every year.
Even if this initiative was defeated in 2022, which was uncertain, we would face future initiatives, which would cost millions of dollars to fight and distract from the important work of providing care to Californians and working to improve California’s health care system. AB 35 is a sustainable solution to a decades-long political feud.
We understand that AB 35 will result in increases to medical professional negligence insurance premiums, which may disproportionately impact small and solo physicians. However, unlike the initiative, which would double malpractice premiums overnight, AB 35 would provide a predictable and controlled increase to malpractice premiums.
AB 35 also has a critical protection for physicians. The bill establishes new protections for all pre-litigation expressions of sympathy, regret, or benevolence, including statements of fault, by a health care provider to an injured patient or their family in relation to the pain, suffering, or death of a person or an adverse patient safety event or unexpected medical outcome. As family physicians, who seek to have open communication with our patients, this protection ensures we can express our sympathy without risk of having it be used against us.
CAFP supports a sustainable solution to a decades-long political feud that achieves a balance between financial justice for injured patients, maintaining MICRA’s essential guardrails, and long-term predictability of malpractice premiums.
AB 35 was already approved by the Senate. It will go to the Assembly for concurrence next week and is expected to land on the Governor’s desk by Monday, May 16th. The Governor has said he will sign the bill once the sponsors of the MICRA initiative remove it from the ballot.
CAFP will continue to provide information to members and look for ways to help our members navigate these changes.