The $250,000 cap on “pain and suffering” damage awards in California malpractice suits has not been raised in 30 years. And that’s just fine with many physicians in the state.

“It’s a tremendous benefit for us, but it’s still not enough,” said Dr. Peter Weiss, a Beverly Hills ob.gyn. who has been in practice for 19 years. “Malpractice is still a major concern.”

Dr. Weiss was referring to the Medical Injury Compensation Reform Act of 1975 (MICRA), which caps noneconomic damages at $250,000.

Another MICRA fan is Dr. Philip Diamond, a San Diego ob.gyn. who is active in Californians Allied for Patient Protection (CAPP), a grassroots organization that supports the current law. “MICRA makes people whole,” he said. “It provides for full economic damages–lost earnings, medical care, rehabilitation costs. Everything’s covered. The only thing it doesn’t do is allow people to become multi-millionaires because of pain and suffering.”

But attorneys and patients say the cap is too low. One state senator, Tom Torlakson (D-Antioch), is planning to introduce legislation next year that would raise the cap to $900,000, and a consumer group is considering putting a referendum on the ballot to eliminate the cap altogether.

Robert Oakes, a spokesman for Sen. Torlakson, said the senator’s bill was spurred in part by the experience of constituents who tried to hire a lawyer to represent them after their 7-year-old daughter’s death, allegedly as a result of medical malpractice. They say they were repeatedly turned down by lawyers who said the case was not worth taking because of the cap.

The couple’s difficulty in finding an attorney doesn’t surprise James C. Sturdevant, president of Consumer Attorneys of California, a Sacramento-based group that favors increasing the cap. “If you’re going to hire competent doctors [as expert witnesses] who come from the University of California, San Francisco, or Stanford Medical School, you’re going to pay a high hourly rate for the work they do,” he said. “Some of them are just looking at few pages of medical records, but what if you are doing an elaborate investigation as to the cause and effect of the negligence, and having to take depositions at the experts’ hourly rate, and hiring statisticians and experts? The cost can easily be somewhere between $100,000 and $200,000.”

Add that to the fact that the attorney will be paid a maximum 40% contingency fee, or $100,000 in the case of a $250,000 award. In the example described, “that would not even cover out-of-pocket costs, to say nothing of the time invested by lawyer. That’s why it’s a disincentive,” Mr. Sturdevant said.

The cap adversely affects the people with the most serious injuries, he said. “If you have a child who suffers brain damage as result of medical negligence, the child may be physically healthy and may end up living 75 years. Other than covering medical costs, the child receives virtually no [economic] compensation because he or she doesn’t have a wage history.”

Dr. Diamond, who represents the California chapter of the American College of Obstetricians and Gynecologists at CAPP, said he is skeptical that most people have trouble finding a malpractice attorney. But he admitted that the issue of pain and suffering payments for cases involving babies “is a difficult one,” although it’s a trade-off society must make.

“If you want to give those people $1 million or $5 million, that money’s going to have to come from somewhere,” he said. “We have tough decisions to make, and raising the cap on noneconomic damages hurts patient access [to care].”

That’s because if the cap is raised, physicians would then need to increase the limits of their malpractice coverage, which would mean paying higher premiums, Dr. Diamond explained. “If that happens, we’ll have to increase revenues, but we can’t do it with Medi-Cal [California’s version of Medicaid] patients because our revenues are so poor and we can’t increase the fees. So doctors will cut back on seeing the lowest-reimbursing patients, and that tends to be the uninsured and those on Medi-Cal.”

Peter Warren, spokesman for the California Medical Association (CMA), said the impact of increased malpractice premiums is a big one.

“If you’re an ob.gyn. and your malpractice [premium] is $250,000 a year and you get $2,000 for delivering a baby, [then] you have to deliver 125 babies a year–almost 3 babies a week–just to pay your insurance,” Mr. Warren said. “Then think of all the other costs you have, let alone the idea that you want to make a living to warrant the fact you’re in school for 20 years. That’s why you see ob.gyns. who don’t do obstetrics any more.”

Lawrence E. Smarr, who is president of the Physician Insurers Association of America, a Rockville, Md., trade group that represents malpractice insurers, said raising the cap to $900,000 would not work very well because nationwide, the average verdict against an individual physician is $430,000–well below the amount of the proposed cap–so a cap that big would not reduce very many awards.