AB 35 MICRA Reform A Year Later – Navigating the Shifting Currents of Healthcare Litigation

AB 35 MICRA Reform: A Year Later – Navigating the Shifting Currents of Healthcare Litigation 


The landscape of healthcare litigation and insurance underwent a transformative overhaul in California with the introduction of the AB 35 MICRA Reform. As we navigate through the complexities of this pivotal legislation, its profound implications on the frequency and severity of medical liability claims have begun to crystallize. This deep dive aims to unravel the multifaceted effects of the reform, focusing on the recalibrated caps on non-economic damages, the nuanced differences in caps for injury versus death cases, and the segmentation of caps across defendant categories.  

The Evolution of Caps: A Closer Look  

The Escalating Caps and Their Implications:  

The journey into the AB 35 MICRA Reform reveals a deliberate, phased increase in the caps on non-economic damages, a stark departure from the previous uniform cap. In 2023, we observed an initial leap from the longstanding $250,000 cap to $350,000 for non-death cases and an even more substantial jump to $500,000 for death cases. This trajectory of increases, set to continue until 2034 and beyond, signifies a monumental shift in the financial exposure of healthcare providers and institutions:  

  • 2023 Reform Impact: $350,000 for non-death cases; $500,000 for death cases.   
  • Caps Increasing: Yearly increments of $40,000 per cap leading to $750,000 for non-death and $900,000 for death cases by 2034. Beginning 1/1/2034 caps will be adjusted 2% for annual inflation.   

This escalating cap structure introduces a dynamic component to the assessment of risk and the calculation of premiums in healthcare liability insurance, necessitating a recalibration of financial strategies within the industry.  

Analyzing the Caps Through the Years:  

A longitudinal analysis of the cap increases unveils an expected yet dramatic rise in claims severity. This rise not only alters the landscape for existing policyholders, but also sets a precedent for how new policies are underwritten and priced. Insurers and healthcare institutions must now grapple with the dual challenge of accommodating these higher potential payouts while ensuring that premiums remain affordable and equitable.  

The Distinction in Caps: Injury vs. Death Cases  

The reform’s distinction between injury and death cases introduces a tiered approach to compensation, acknowledging the profound difference in impact between the loss of life and non-fatal injuries. This differentiation necessitates a more nuanced understanding and approach to policy underwriting and claims management, potentially influencing the approach to settlement negotiations and litigation strategies.  

The Segmentation of Caps Across Defendant Categories  

Unpacking the Three Categories:  

The segmentation of caps based on the category of the defendant (Health Care Provider, Health Care Institution, and Unaffiliated Health Care Institution or Provider) introduces a complex layer to the litigation and settlement landscape. This differentiation acknowledges the varied roles and responsibilities in patient care and outcomes, potentially leading to more precise allocations of liability.  

Strategic Implications:  

For legal professionals and insurers, this segmentation demands a granular analysis of each case, understanding the specific circumstances and defendant category to accurately assess potential liability and financial exposure. This may lead to a strategic evolution in how defense strategies are formulated and how settlements are negotiated.  

The Temporal Aspect: Impact of the Cap at the Time of Judgment  

A critical, yet often overlooked, aspect of the reform is the stipulation that the cap amount in effect at the time of judgment, arbitration award, or settlement applies. This temporal element introduces a forward-looking component to the management of ongoing and future claims, compelling insurers and healthcare providers to anticipate the cap increases in their long-term financial planning and reserves.  

Plaintiffs’ Counsel and the Frequency of Claims  

The increased caps have undeniably caught the attention of plaintiffs’ counsel, leading to a notable uptick in the frequency of filed claims. This trend not only affects the immediate financial liabilities of healthcare providers and insurers, but also has broader implications for the healthcare industry at large, potentially influencing the cost of care and the accessibility of services.  

Navigating the New Normal  

As we delve deeper into the aftermath of the AB 35 MICRA Reform in California, it becomes increasingly clear that the healthcare and insurance sectors stand at a pivotal crossroads. The reform has not only introduced increased caps and nuanced defendant categories, but has also brought to light the critical importance of temporal aspects in claim settlements. This complex landscape calls for a comprehensive strategic reevaluation of how medical liability is approached, managed, and mitigated.  

Moreover, the MICRA Reform underscores the need for a meticulous adjustment in actuarial forecasts. Healthcare entities must now recalibrate their evaluations of retained risk to accommodate the evolving legal framework. This recalibration involves integrating sophisticated actuarial models that can accurately predict the financial impact of the reform, ensuring that entities can maintain a balance between risk retention and risk transfer strategies effectively.  

The path forward demands a synergistic collaboration among healthcare providers, insurers, legal professionals, and policymakers. This collective effort aims to fulfill the reform’s objectives—boosting patient compensation while safeguarding the accessibility and affordability of healthcare services. Adapting to this new normal requires us to remain informed, agile, and proactive in our strategies. Embracing advanced actuarial insights and adjusting our risk evaluation methodologies will be pivotal in successfully navigating the intricacies introduced by the AB 35 MICRA Reform, thereby fostering a resilient and equitable healthcare system for all.  

For more information on Liberty’s National Healthcare Services Practice, please reach out to Tim Mooney, Senior Vice President (National Healthcare Services Practice Leader), The Liberty Company Insurance Brokers.  

Learn More About Liberty's National Healthcare Services Practice Group

For more information on Liberty’s National Healthcare Services Practice Group, please reach out to Tim Mooney, Senior Vice President (National Healthcare Services Practice Leader), The Liberty Company Insurance Brokers.

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