MICRA deal forged by lawyer with history of pissing people off

In late 2019, the relationship between outspoken trial attorney Nicholas C. Rowley and some other members of the Consumer Attorneys of California had grown tense. The organization had not gotten behind Rowley’s initiative to raise a 1975 cap on medical malpractice damages.

Rowley used his speaking slot at the group’s convention to sharply criticize a key CAOC ally in the Legislature for not supporting efforts to change the law. Two and a half years later, Rowley and the CAOC are celebrating a shared victory.

In an agreement involving the California Medical Association and other groups, the sides endorsed raising the $250,000 limit on noneconomic damages under the Medical Injury Compensation Reform Act of 1975. If lawmakers pass a bill containing the changes in time, it will short circuit a November ballot measure that could easily cost the sides tens of millions of dollars.

“Nick really is the person behind all of this. … He has certainly done some things that have pissed people off, but you have to give credit where credit is due,” said Douglas N. Silverstein, president of the Consumer Attorneys Association of Los Angeles.

The deal started earlier this year when Rowley and California Medical Association President Dustin Corcoran sat down for an initial conversation that ended up lasting 4 1/2 hours. Both also gave credit to others who joined the negotiations after these initial talks. Corcoran said the deal wouldn’t “have gotten done without Carmela Coyle,” president and CEO of the California Hospital Association.

Rowley said CAOC President Craig M. Peters was “very meticulous” in helping to work out the most complex details. Reached Thursday, Peters said he was involved in negotiations about how the law would phase in.

“Nick and I worked together to try to figure out the points that were most important for injured patients, keeping in mind how these cases actually work their way through the legal system,” Peters said.

But the initial meeting almost never happened. Rowley spent months reaching out with the help of former Insurance Commissioner Steve Poizner. Corcoran said he repeatedly ignored these efforts before finally deciding to sit down with Rowley.

“I had zero expectations we would actually get to a deal,” Corcoran told the Daily Journal on Thursday. “I didn’t know Nick personally, but obviously we’d done a lot of research about him for the campaign and did not think that this would be an individual that we’d be able to have a reasonable, thoughtful conversation with.”

Corcoran said he sympathized with injured patients, but knew huge sudden changes to medical malpractice insurance would be too much of a “shock to the system.” Unlike many previous conversations he’d had with plaintiffs’ attorneys about the law known as MICRA, Corcoran said Rowley listened.

“This deal doesn’t get done without Nick Rowley bringing in a fresh perspective and a willingness to listen,” Corcoran said.

One quirk of the 1975 law was that it didn’t include an annual cost-of-living increase. While Corcoran was a young child at the time and Rowley hadn’t been born yet, each said their understanding was that the plaintiffs’ attorneys didn’t seek one because they thought it would make the law easier to defeat in court or politically down the line.

“The reason this bill had never been done before is the CAOC’s position has always been ‘retroactive COLA to 1975,”’ Corcoran said. “That’s their beginning and end.”

Instead, the new law would raise the caps on Jan. 1 to $350,000 for pain and suffering and $500,000 for wrongful death. The caps would grow to $750,000 and $1 million by 2033, rising 2% each year afterward.

Rowley said another key aspect of the deal is that plaintiffs could seek “up to three caps” in claims against multiple providers and institutions involved in a malpractice case. Attorney fees will rise from a cap of 15% to 30%.

“It will make it so that lawyers who wouldn’t otherwise take these cases and help these people, they’ll start taking cases,” Rowley said. “It’s not a big win because lawyers are going to make more money, it’s a big win because people are going to be able to get representation.”

Rowley’s key ally in the Fairness for Injured Patients Act, his proposed initiative, is Consumer Watchdog President Jamie Court. He said he first encountered Rowley in January, 2019, when the Consumer Attorneys Association of Los Angeles named Rowley its 2019 Trial Lawyer of the Year Award. Rowley used that speech to announce he was going to spend that year trying to change MICRA.

“I’m in the audience, I’ve been trying to change MICRA for 28 years and I’ve never met Nick Rowley,” Court said.

The two ended up working together. But they delayed their effort from 2020 to 2022 because of the pandemic. Court said that extra time allowed the negotiations to happen.

Court also said that Rowley’s persistence — and the personal wealth he was willing to spend on changing the law — made a difference.

“Honestly, if we lost this time, Nick would have been back in two years,” Court said. “That’s what worried them more than anything.”