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The Limitations Of MICRA May Be Avoidable For Unlicensed Medical Procedures In Medical Malpractice Cases
Medical malpractice claims are governed by California’s Medical Injury Compensation Reform Act (MICRA). MICRA was enacted in 1975 with the purpose of detracting attorneys from filing medical malpractice lawsuits. This Act was heavily lobbied for by the ever-powerful medical industry. Some of the most unfair aspects of this legislation include limiting a patient’s pain and suffering damages to a maximum of $250,000 and limiting the fees attorneys are allowed to recover in medical malpractice cases.
Essentially, this means that no matter what negligent medical procedure a doctor performs, the most a patient can recover is $250,000 for pain and suffering. For example, if a patient needed to have his left leg amputated and the doctor amputated the right leg instead, the most that patient could recover for pain and suffering is $250,000. Making it even worse, that limit has never been adjusted for inflation. Obviously, $250,000 in 1975 when the Act was enacted, was worth much more than today—some 45 years later.
By limiting the attorney fees, personal injury attorneys are less willing to take on these cases and assume the time burdens and financial risks involved.
MICRA also detracts attorneys from taking medical malpractice cases. It caps the attorney fees at certain percentages which are much less than what an attorney is allowed to recover in other personal injury cases. Medical malpractice lawsuits require lots of experts and are expensive to pursue. By limiting the attorney fees, personal injury attorneys are less willing to take on these cases and assume the time burdens and financial risks involved. Simply put, MICRA has altered the risk-reward balance by statute. This harms individuals who are seeking a medical malpractice attorney to handle his or her case.
MICRA as codified by California Civil Code § 3333.2 limits the recovery of noneconomic damages as follows:
(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.
MICRA May Not Apply to Procedures Performed by Unlicensed Individuals
In a past case our firm handled, our personal injury attorneys argued that an athletic trainer that botched a laser treatment was not a health care provider to which MICRA applied. Our attorneys believed that the athletic trainer did not qualify as a health care provider either as a practitioner or as a facility. As a result, MICRA was inapplicable. Our attorneys reasoned as follows:
Even if the athletic trainer did qualify as a health care provider (which she did not because she was not licensed or the legal representative of the medical facility for which she was working), her conduct was not professional negligence to which MICRA would apply. As defined, 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 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.
The athletic trainer was not medically licensed. Even if she did hold a healing arts license (such as an LVN or other), California’s licensing board prohibits the use of certain lasers by anyone other than a physician, physician’s assistant or registered nurse. In sum, the athletic trainer’s unlicensed activities were not professional negligence as defined under MICRA. As such, MICRA limitations capping non-economic damages should not apply. Specifically, the trainer’s conduct was “within a restriction imposed by the licensing agency.”
MICRA is inapplicable when a provider operates in a capacity for which he is not licensed—for example, when a psychologist performs heart surgery.
Unlicensed individuals who perform a procedure for which a medical license is required, do not meet the definition of “professional negligence” under MICRA. In addition, they are not “health care providers.” This is supported by California case law. “Certainly, the meaning proposed by plaintiff, restricting ‘health care provider’ to persons who actually hold a license or certificate from the state, is reasonable. It is, in fact, the most obvious meaning of the words used by the Legislature, which restrict ‘health care provider’, to ‘persons licensed or certified’ under state statute.” Chosak v. Alameda County Medical Center, 153 Cal.App.4th 549, 561 (2007). “MICRA is inapplicable when a provider operates in a capacity for which he is not licensed—for example, when a psychologist performs heart surgery.” Prince v. Sutter Health Cent., 161 Cal.App.4th 971, 978 (2008)(citing to Waters v. Bourhis, 40 Cal.3d 424, 435-436 (1985).
Both Chosak and Prince, cited above, dealt with the issue of an unlicensed individual performing a procedure for which a license was required. Chosak involved a professional negligence claim against an optometry student. There, the Court concluded that even though the student was unlicensed, he still qualified as a health care provider under MICRA because there was an exception for optometry students allowing them to practice without a license as part of the activities of their medical schooling. (Supra at 560). “In this appeal, we must decide whether the term ‘health care provider,’ as so defined, includes a medical student lawfully practicing medicine under a statutory exemption to those licensing requirements. We conclude that it does.” (Id. at 555). In reaching this conclusion, the Court explicitly set forth “in short, while most persons must obtain a license or certificate to practice the healing arts lawfully in California, there are exceptions to this general rule, each exception tailored to the needs of the particular profession.” (Id. at 561). No such exception applied to the athletic trainer in the case our firm handled for the botched laser treatment and resulting burn injuries.
Prince, involved an unlicensed social worker who was registered with the State Board of Behavioral Sciences. The family of a mental patient who killed himself brought a negligence action against the insurer, hospital and social worker. After settling with the hospital, for the MICRA non-economic damages cap of $250,000.00, Plaintiffs continued against the social worker and her employer. Plaintiffs claimed that the social worker was unlicensed and, therefore, the MICRA cap did not apply. Plaintiff moved for summary adjudication and the trial court held that the MICRA cap did apply to an unlicensed social worker registered with the appropriate agency.
The court of appeals affirmed the decision. “We hold that an unlicensed social worker, registered with the appropriate agency and working toward licensure, is a ‘health care provider’ rendering ‘professional services’ under the Medical Injury Compensation Reform Act.” (Id. at 974). The athletic trainer in our case was not licensed. Further, she was not registered and working toward a license either. The athletic trainer was not performing a procedure that someone working toward a license was allowed to do. As such, we argued that MICRA should not apply to the negligent laser treatment that significantly burned our client.
Contact One of Our Monterey Personal Injury Attorneys to Discuss Your Medical Malpractice or Personal Injury Case
As discussed above, a skilled personal injury attorney can find angles and ways to give you an advantage. Creative lawyering and thoughtful legal research may allow you to avoid potential limitations imposed by the law. The attorneys at the Piccuta Law Group can do exactly that. Our attorneys give you the best chance for recovery by diligently exploring every aspect of your injury case.
If you or a loved one has experienced medical malpractice, dental malpractice or any other serious injury due to the negligence of another, contact our law firm today. A skilled personal injury attorney is available now to discuss your case. A consultation is free and if we take on your case, we will do it on a contingent fee basis. This means it will cost you nothing and we only charge a fee if we recover for you. Contact the Piccuta Law Group today if you or a loved one has been injured.
About the author: The content on this page was written by Monterey personal injury attorney and civil rights lawyer Charles “Tony” Piccuta. Piccuta graduated with honors from Indiana University-Maurer School of Law in Bloomington, Indiana (Ranked Top 35 US News & World Report 2018). Piccuta took and passed the State bars of Arizona, California, Illinois and Nevada (all on the first try). He actively practices throughout California and Arizona. He is a winning trial attorney that regularly handles serious personal injury cases and civil rights lawsuits. He has obtained six and seven figure verdicts in both state and federal court. He has been recognized by Super Lawyers for six years straight. He is AV Rated by Martindale Hubble. He is a member of the Consumer Attorneys of California, American Association for Justice, National Police Accountability Project, Arizona Association of Justice, Maricopa County Bar Association and Scottsdale Bar Association, among other organizations.
Disclaimer: The information on this web site is for informational purposes only and does not constitute legal advice. Reading and relying upon the content on this page does not create an attorney-client relationship. If you are seeking legal advice, you should contact our law firm for a free consultation and to discuss your specific case and issues.