California Bill Seeks to Raise Cap on Medical Malpractice Damages for First Time in Nearly 50 Years

In 1975, the state of California capped medical malpractice damages for pain and suffering to $250,000 and that’s where it's stayed for 47 years.

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For the first time in nearly 50 years, California lawmakers are seriously looking at raising the amount of money victims of medical malpractice can receive.

In 1975, the state of California capped medical malpractice damages for pain and suffering to $250,000 and that’s where it's stayed for 47 years. Assembly Bill 35 stands to change that.

AB 35 would increase the cap to $350,000 starting in 2023. That amount would go up by about $50,000 each year until it reaches $750,000 in 2033. For wrongful death cases the cap would be higher -- $1 million. After that, the cap on damages would climb 2% every year to keep up with inflation.

Steven Olsen was just 5 years old when NBC 7 first met his family. Today he is 32. He's blind, has cerebral palsy, and cannot eat or walk without help, but he wasn't born like this.

When Steven Olsen was 2, he fell and a stick punctured his face. For a week, his parents took him to urgent cares and hospitals as he turned more and more lethargic. His father Scott Olsen said he repeatedly asked for a brain scan fearing an infection from the accident could be growing, but he said doctors denied them multiple times.

“The doctors said, ‘No, no. That doesn’t have anything to do with it,'" recalled Scott Olsen. 

By the time doctors agreed to a CT scan, Olsen said it was too late. Now Steven Olsen needs constant supervision, which he gets from his father.

“It's been a long time,” Scott Olsen said. "After a while you have to make peace with it, and you have to live with it. You don’t have a choice."

In 1995, a jury awarded Scott Olsen about $11.5 million – $4.5 million dollars for his medical costs and future care and $7 million for pain and suffering -- but he never got the second award because state law caps those damages to $250,000.

“The importance of having a higher cap is so families can seek justice,” Scott Olsen said.

Scott Olsen said the cap is so low it’s hard for victims to find lawyers willing to take on these cases.

“It’s extremely important to me that we were able to come together,” Assemblymember Dr. Akilah Weber said. “Fix it, get it right for patients, but also get it right for providers so we don’t end up with a shortage here in California.”

Dr. Weber would know, she’s a doctor herself in a very litigious field – obstetrics and gynecology.

“Even when I was leaving residency, we were telling each other as residents, which states we should not practice in because of the high medical malpractice insurance rates," Weber said.

A cap increase has been debated for decades, but Weber believes this time lawmakers, patient advocates and providers have struck the right balance.

"With the support of all of the people involved, I’m very confident that it will pass," Weber said.

“Finally,” Scott Olsen said. “I mean, it’s been a long time, but finally something is being done about this.”

In order to care for their son, Scott Olsen's wife had to quit her job. When she died in 2015, he had to quit his. As difficult as Steven Olsen's experience has been for the family, Scott Olsen said they're luckier than others. He’s heard from many victims of medical malpractice who can’t find an attorney because of the current cap on damages. 

State Senator Tom Umberg will introduce AB 35 in a committee hearing on Tuesday. If the bill passes the state Senate, it will then make its way through the state House. If it clears both, it will land on Governor Newsom’s desk.

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