California’s Proposition 46: Trial Attorneys Behaving Badly

flying cadeuciiAfter more than a year of conspiratorial planning that would make Francis Underwood proud, California’s trial attorneys got a number assigned to an opaquely worded ballot initiative on Drug and Alcohol Testing of Doctors. Medical Negligence Lawsuits Initiative Statute As a result, “Proposition 46” could give California voters an unwitting hand in doing what this attorney group has been unable to accomplish after 40 years of inept legislative lobbying and dubious court challenges: undermine the state’s Medical Injury and Compensation Reform Act, or MICRA.

MICRA was passed in 1978 by a Democratic-dominated legislature and signed into law by then-governor Jerry Brown in response to the collapse of the state’s medical professional liability insurance market.  MICRA didn’t change the right of injured patients to obtain unlimited economic damages for all medical costs, lost wages and lifetime earnings. What it did was limit was non-economic “pain and suffering” damages to $250,000. Up until 1978, California’s trial attorneys had used this highly speculative class of damages to rake in a third of the multi-million jackpot jury awards. That made California physicians’ malpractice insurance unavailable at any price, leading many doctors to close their practices and leave the state.

That ended with the passage of MICRA. The market stabilized and in the decades that followed, billions in health care savings from lower professional liability costs were passed through to California’s patients.

Early last year, California’s physicians had heard rumors that a ballot initiative to undo MICRA’s non-economic cap was being planned.  Little did they know that California’s trial attorneys would take their cue from political consultant-bully Chris Lehane by opening their campaign with a mass mailing of anti-MICRA cadaver toe tags. That was quickly followed by the neighbors of pediatrician and then California Medical Association President Paul Phinney receiving deceptive postcards implying he was a drug dealer.

Months later, the ballot initiative – that was 100% underwritten by the trial attorneys and their allies at a cost of $2.85 per signature – landed on California Attorney General Kamala Harris’ desk.  The initiative’s authors cleverly disguised its quadrupling of the MICRA cap to more than $1 million (“to account for inflation”) and cynically camouflaged it between two conversation-changers:  1) mandatory physician drug screening and 2) mandatory uploading of the narcotic prescription history of every California patient to an online database. Naturally, Ms. Harris rewarded her trial attorney donors by making a mockery of the state’s single-subject rule and okayed it.

Even Breaking Bad’s Saul Goodman would blush at this cynicism. California’s legal community has been at the forefront of employer-related tort claims over abusive employment drug screening and, until the initiative was filed, was conspicuously silent on the subject of drug testing for doctors.  In addition, concern over the threats to patient privacy had previously led the trial attorneys to oppose implementation of clunky and defective databases like CURES.  When these tenets became inconvenient, both were thrown under the inconvenient-fact bus when a trial attorney operative confessed to the LA Times that poll testing showed that the two drug provisions were “sweeteners” to get the Proposition’s anti-MICRA provision to pass.

Unfortunately, Proposition 46 is another sad example of a deep-pocketed special interest hijacking a well-meaning ballot initiative process.  While the trial attorneys would have us believe that MICRA prevents Californians from litigating their way to perfect patient safety, their true intent is clearly aimed at getting a place at the trough of what Proposition’s summary describes as “increased health care costs ranging in the low tens of millions to hundreds of millions of dollars annually.”

While readers of The Health Care Blog may think this is an interesting political battle in a corner of the country that deals with a small slice of health policy, every person reading this should be aware that if MICRA’s non-economic provisions are compromised, the likelihood of tort reform in every state will be rocked back on its heels.  Increased professional liability insurance costs from increased numbers of suits combined with larger awards would be ultimately passed thru to the health care consumer just when health reform is getting off the ground.

 California Doctor is a California Doctor. Due to his prominent position and potential issues facing his employer should  his identity to be revealed, he has asked to remain anonymous.  

131 replies »

  1. Whew…some sanity injected here. Thank you. And what about the inevitable false positives? Q: do we not call it the ‘Joint Commissin’ now?

  2. I regret that I didn’t come upon this post and thread (much too long and detailed for me to read thoroughly) before I voted. Today is Election Day. I am very impressed by how articulate and clear you are in your writing, especially in your replies. Thank you for taking a stand. The best to you. Anne

  3. YES on Prop 46 will make the Dr. slow down and spend more time on the patient. Prop 46 will hold the Dr.. accountable when they’re careless. Prop 46 will require doctors.to be drug/alcohol tested, ensuring our safety. The days of the 5 minute appointment, tossing out a plethora of prescriptions without proper diagnosis is coming to an end!! The days of marginalizing our loved ones is ..coming to an END. Finally, this white coat, God like complex and arrogance is coming to an END! I look forward to this becoming a law! * I am a parent who lost his 24 year old daughter, a new mother of just 4 months to a local doctor who carelessly gave her 2 medication that put her to sleep permanently and you want me to be accepting? Not so much! This health and safety initiative reaches into each of our homes, providing that very necessary added layer of security for our families. For those thinking this is about the attorney’s…..Keep in mind that this is the only door open to you when you seek justice and want to hold a Dr. accountable.
    The only door!! ~ In fact, the moment you learn of a death from a patient of yours, you contact your attorney, circling the wagons, while we are in shock. Don’t even go there with me. YES on 46 ~

  4. BTW…nice canned speech you cut and pasted on this blog…right off your own website. How impressive that you also have a real estate license.

    Sell out, ambulance-chasing hack that you are. And to think I almost went to Lafayette College myself…

    Congratulations. You are a true credit to your (former) profession by using your legal degree to stab them in the back! May you have to rely on the skills and competence of those you seek to destroy some day…and wind up with a poor outcome.

    Vote “NO” on Prop 46!!

  5. Esquire…(since your last set of comments fly in the face of you being empathetic to the overwhelming majority of *good* doctors)

    To you, I have only this to impart:

    “Logic clearly dictates that the needs of the many outweigh the needs of the few… Or the one. ”

    So we should ALL, as a profession, suffer for the missteps and botched cases of the few by choking on a 4-fold increase in premiums? (rhetorical)

    Witch hunt!!!

  6. Eric…
    Get a grip. You obviously have a HUGE ax to grind and want to paint ALL doctors out to be demons. I’m guessing you don’t have a job…based upon the extensive amount of time and research you pour into your posts. You are exceedingly based in emotionality, and are clearly on a crusade to bring your loved one(s) some form of justice that they will never feel or profit from. You are that ONE guy on YELP who wants to trash the reputation of a restaurant for making “the worst meatball sandwich ever”. Yes…it sounds like your life has been touched by a few bad outcomes. And you are right to cop to the fact that you’re NOT an attorney. For if you were, you would know definitively that a bad result in medicine does not always equate to doctor incompetence or “malpractice”….for there are myriad reasons for poor outcomes…not the least of which are patient non-compliance and the variable responses that real live human tissues are capable of. But because you’ve suffered the loss of a loved one…or happen to know others who have also been affected by a poor outcome, we should ALL be penalized, right? (rhetorical) For those of us that are doing right by our patients, we empathize with your personal connection to these tragedies…but still RESENT some of the implications that you are making, and the misplaced universal aggression towards medical professionals in general. I’m hoping that you never become a judge…to be painting in such broad strokes so as to assassinate and sully the integrity and reputations of those of us who have dedicated our lives to the healing of others. Had I known that one day, doctors would be SO easily vilified by people like you, I might have stuck with that garage band back in the day rather than go into suffocating debt obtaining my medical degree! Peace out, Sparky…

  7. As a medical malpractice attorney AND physician, I found it difficult to read most of this thread without rolling my eyes… there is so much rhetoric and drama from both sides, it’s really a very simple issue when boiled down.

    Physicians are not held to a standard of perfection or even to the standard of being the best or even almost the best in their field… They are held to the standard of care for their community and peers. The California legislature has made the legal procedures and rules for medical malpractice cases different from other areas, and done so with a purpose – that purpose being protection of doctors… and while there are many who see protecting doctors as a bad thing, it is not in and of itself really so… some doctors should be protected while others should not get the extra legal shield afforded by the law. Physicians provide an extremely valuable services to the public and one that requires an enormous amount of skill and brain power to provide correctly – all in a field which is not black and white science but science and art combined – lives are at stake, opinions vary, advancements in science abound, no two patients are alike, etc. In addition, medical malpractice cases are extremely expensive and difficult to bring (properly, that is… anyone can slam together an unintelligible complaint and pay the filing fee). To make a suit “worth it,” there needs to be significant damages – and damages that would not have occurred otherwise. As a generalized example, a one month delay in treatment, that is just as effective one month later as it would have been earlier is not going to provide significant damages.

    The current law makes bringing frivolous or even low dollar suits economically destructive for an attorney… as it stands now, those of us who know what we are doing will only take the high dollar cases… the hard costs of suit are enormous (as medical experts now regularly charge upwards of $800 an hour for testimony).

    One other thing to consider as well is that MICRA is absolutely discriminatory in its effect… the limit on pain and suffering of $250,000 is very often the limit of the entire case when it comes to the elderly and more often than it should be when it comes to women and minorities… Punitive damages?There are no punitive damages in medical malpractice cases… Lost wages? People over 65 are retired and women and minorities earn less than white males. Medical Costs? People over 65 have MediCare so there is none, and people on MediCal have none either. People, think before you vote. This law hurts the elderly and women and minorities and the poor… the very people who seem to NOT get the best medical care in the first place.

    As for people who figure this is someone else’s problem… I hate to remind people that the victims of medical malpractice never thought they would be victims before they were… they were plain old people who trusted doctors and such prior to their “incident” (as defense counsel like to callously call it). Their lives are ruined and they deserve fair compensation… since medical injury cannot be undone, all the courts can offer is money.

    – Paul

    Paul J. Molinaro, M.D., J.D.
    Attorney at Law, Physician

  8. It seems that there has been no cost of living adjustment on the 250k since 1978which is ludicrous! The caps must increase to present value. There needs to be motivation for bad docs to get out of practice and let the hood ones care for us. No attorney will work on a contingency basis on a loser case aka a frivilous case. There is too much blood, sweat and tears in the practice of law to waste resources.

  9. You sir have no idea what you’re talking about. You do not know your ass from your elbow when it comes to physicians.

  10. Lets put video in the jury room and then all you Einsteins can see what complete bologna all these arguments are.

  11. Unfortunately, JAD, unlike the criminal justice system, doctors seem to be judged guilty until proven innocent just by virtue of being sued.
    Really, if we want to improve patient safety and weed out plain bad doctors, or re-educate doctors who need it, the current tort system is not working.

  12. wow quite an interesting dialogue. I have a unique interest in “defensive medicine”, a topic I believe is at the forefront of this issue. I have a particular beef with the article cited about that “PROVED that doctors don’t do more tests in fear of lawsuits!”


    Full disclosure, I am deeply invested in patient safety and am a member of our hospital’s safety committee, but I am opposed to prop 46 for multiple reasons, foremost of which is increased costs to the already incredible expensive health care system. I have thoroughly read both the original language of the proposition and the independent analysis of financial costs and the results are alarming. While the review shows potential savings in some areas, the overall costs will increase in the scale of hundreds of millions each and every year.

    Mr. Andrist, after reading your previous commentaries above, while you are clealy quite passionate about this issue and have no problems making personal attacks on individuals who are engaging in an otherwise interesting debate, I see you have no formal medical education, no health care education, no legal education, are not familiar with any of the many regulatory agencies overseeing hospitals, and have a goal to sue hospitals and doctors as quickly as possible. None the less, I will try and explain why the article you posted that you claim “PROVED” doctors don’t do more tests due to fear of lawsuits is biased, weak, and contrary to much better and larger studies that show quite the opposite.

    1. First off, it is widely accepted by practitioners, researchers, and our government that we have a huge problem with doctors ordering too many tests in fear of being sued- what we call “defensive medicine.” Large, powerful studies by many institutions have showed this relationship. More on this later.

    2. It is generally not academic to quote a second hand source of a research study as your rationale for supporting or rejecting the study. This article is, after all, is the opinion of the person who wrote the article, Irvin Jackson in this case, not the authors of the original study.

    3. Even with this in mind, the article is incredible narrow in scope: it compared a single VA center to other non-government centers doing a single test-myocardial perfusion imaging in this case. This is one study, in one center out of thousands of studies and hundreds to thousands of centers across the country. Hardly a powerful study as the n value is 1.

    3. Also, look at the site it is posted on-“AboutLawsuits.com; News and Information about Personal Injury Lawsuits.” Could it be that this study was cherry picked to prove a point? There is so much data available on the internet, you can find a “study” proving dang near anything if you look hard enough. The skill is interpretation and analysis of each study, a practice we as physicians must employ in every day practice to ensure the best treatment for our patients.

    4. Here is an example of citing original research as i mentioned in #2-in this study, a large group of orthopedic surgeons were surveyed and their practice habits analyzed and the “defensive medicine” costs quantified-


    This was subsequently published in a large orthopedic surgery journal and is just one of many, many such studies. To play the other side of the issue, here is analysis of survey data from my collection that is from a group not keen on tort reform, yet the results are the same: higher costs associated with fear of lawsuits


    In conclusion, the only thing your article you article “PROVED” is that there exists some incredibly small and weakly powered study that maybe shows that the trend in ordering of one very specific cardiac tests does not differ between government and non-government based facilities, but we don’t actually have the study to verify or critique.

    What has been shown for years is that defensive medicine plays an enormous role in the costs of medicine and, most unfortunately, rarely benefits the patient. I have mixed feelings on tort reform, but what I try and demonstrate is that increasing the speculative damage cap on MICRA will invariably increase lawsuits (yourself an example) ,increase payouts (obviously), and will increase the practice of “defensive medicine”, which in turn, based on powerful data already published, will increase health care costs.

    I practice defensive medicine every day. I know it costs everyone more as my patients are almost entirely Medical/Medicare, but I fear going to court like the plague. I haven’t been sued yet, but it is shown that around 75% of cases go in favor of the physician, but what they don’t tell you is when a physician gets sued, they always lose. Even if I win, am I compensated for lost time, lost productivity, legal fees endured, or are my patients better off for having to see me at a later time because I am in court/with attorneys for weeks? At my institution, defensive medicine it is so common we call it “CYA” medicine-cover your rear end medicine.

    Thanks for reading!

  13. I still do not have “competent medical care for Severe Obstructive Sleep Apnea” that “I” had to diagnose on my own because EVERY DOCTOR I WAS SEEN BY WROTE FALSE OR INCOMPETENT MEDICAL RECORDS and were unable to write 3 “classic symptoms” for this illness and now after over 14 years of no medical care and no oxygen to brain the STATE WILL BE PAYING THE BILL FOR MY CARE AT A NURSING HOME BECAUSE DOCTORS ONLY CARE ABOUT LIABILITY NOT ABOUT WRITING CORRECT FULL MEDICAL RECORDS. I learned this from gossip that Kaiser nurses informed my pharmacist father and largest salesman for Eli Lilly in Los Angeles, Ventura , Riverside counties in the 60’s & 70’s and after his heart attack he would not be taken to a hospital because he was afraid they would KILL HIM FROM MISTAKES.

    Until the law is changed in California the doctors will continue to “omit” all complications as my surgeon Dr. Paul Nottingham, Walnut Creek omitted when he messed my disk surgery and damaged a major nerve coming from my spine. Contra Costa county was forced to file SSD for me because I was never able to return to work. Cost to Federal gov. along with OxyContin Rx and loss of taxes for a woman at age 42. Major complications unable to move or feel my leg and surgery became over 8 hours when it was to be only 4 hrs. unable to use my left leg for six month. None of these complications or what ACTUALLY TOOK PLACE AT THE SURGERY OR HOSPITAL WAS EVER WRITTEN TO ANY MEDICAL FILE. THEN I LEARNED HE DAMAGED MY THROAT AS WELL WHICH CAUSED THE THROAT MUSCLE TO EVENTUALY COLLAPSE WHEN I SLEPT. I CANNOT GET MY MEDICAL RECORDS FROM A SINGLE DOCTOR THAT I HAVE BEEN SEEN AND INCORRECTLY BEEN TREATED SINCE I HAD TO REQUEST A SLEEP TEST WHICH CORRECTLY DIAGNOSED THE ILLNESS AND DAMAGE TO MY THROAT.
    I NOW VOICE RECORD ALL MY MEDICAL VISITS AND SENT TREATMENT CONFIRMATION LETTERS BECAUSE DOCTORS FAIL TO WRITE CORRECT FULL ACCURATE MEDICAL RECORDS SO THEY CAN PROTECT THEMSELVES FROM COMPLAINTS OR ACTIONS BY MEDICAL BOARD. CALIFORNIA MEDICAL BOARD IS A JOKE! I will be now dying in from of their office in Sacramento to show all who receive incompetent medical care that is mal-practice and every doctor should be punished for failing to write correct medical symptoms and what a patient “truly discusses”. Looking for False Claim lawyer. My pain management doctor, Integrated Pain Management, Walnut Creek refuses to provide my medical records since I discovered they are all false as they wrote I was receiving CPAP medical care and writing 360 tablets of 80 mg. OxyContin when the truth was I had not been able to find a sleep specialist or received any CPAP yet. Then the Bi-pap that was ordered by Dr. Karin Cheung of Walnut Creek failed to help and she failed to write a correct medical record by refusing to immediately retest after 90 days of absolutely no improvement and getting worse. Violated my HIPPA writes and sent my entire incorrect medical file to the PCP who I fired for incompetence and she was delivered by hand letter of “firing of my PCP for failing to discuss my sleep tests or refer to a specialists after no test was ever put into my medical file. Doctor protect each other so no bad doctors are removed from the profession. I now refuse to trust a single doctor and nicely inform them I will be voice recording to provide a copy to the medical board as the board never bothered to investigate ANY of my documentation of certified signed receipt letters or faxes to my doctors about all the errors I was having to correct regarding wrong med info my to Medicare Rx insurance company and failing to provide billings to me for charges they had made. I was forced to write FOIA to get true charges these incompetent medical doctors had charged to Medicare for NO SERVICES RECEIVED and false med record written that they will not release to me or amend on every page per California law . Now my pain management doctor is afraid I will DROP DEAD AT NIGHT BECAUSE I STILL HAVE NOT FOUND COMPETENT SLEEP SPECIALIST AS AN ENT THAT WAS CONSULTED INFORMED ME ONLY A TRACHEOTOMY SURGERY WOULD HELP BECAUSE OF ALL THE PROBLEMS HE FOUND. HE WAS SENT A SURGERY CONFIRMATION LETTER AND DID NOT RESPOND WITH ANY CONTRADICTIONS. When I returned to have him perform the surgery he didn’t remember who I was, what he had diagnosed , what exam he had performed and had no medical file. He threw away my three sleep studies that he consulted and also did not any record of my office visit. Then he tries to sell me a dental appliance when we previously had agreed my TMJ was an extreme problem and my flat palate prevented any kind of surgery. We even discussed previously medical journal reports I had printed and discussed when bi-pap had completely failed. Then off the top of his head he recommends turbinate surgery WITHOUT FIXING THE DEVIATED SEPTUM HE DISCOVERED I HAD BUT HE FAILED TO WRITE A MEDICAL FILE SO HE DIDN’T REMEMBER ANYTHING. These kind of doctors have no business in the medical profession. Dr. Sassan Falsafi is disreputable and thank God for social media where at least harmed patients can publish the incompetent harmful medical care they received so they will not care for another patient because the California Medical Board is a JOKE. I had voice recordings and documentation regarding what my true medical records should be and they NEVER bothered to read and did not bother to contact me to get. I told them I was severely disabled and would be sending them but they don’t want any doctor to be punished. THOU SHALT NOT SPEAK ILL OF ANOTHER DOCTOR. Just try to correct the damage the incompetent doctor made. Gladly talk to any person about my case after 2 p.m. 925-787-5412

  14. That couldn’t be FURTHER from the truth! Do you have no shame in not doing any research before you speak?

    Lawyers won’t take 90% of the medi-mal cases because they don’t make any money for them! Further, most medi-mal cases are won by the doctors, which means that since the lawyers take the cases on a contingency basis, they would lose every cent they put into it if when the case is lost. So what lawyer is going to accept a case that’s not got great chances to begin with, and risk losing every dime they put into it? Cases cost anywhere between $100,000 and $1 million just in court costs!

    So how in the WORLD could this be a money grab for lawyers, let alone rich ones?

    Where is WHAT money going to come from? It’s coming from you now! A majority of the time when a victim of medical negligence can’t get a lawyer or loses their case, their health expenses, which are sometimes astronomical, become a burden to the state and the taxpayers! All because a doctor was negligent and a stupid 39-year-old law prevented them from getting to court and holding the doctor accountable! Do you realize how many people are now disabled and reliant upon your taxes because of negligent doctors and hospitals?? There are upwards of 440,000 deaths from medical error every year in this country, and an even higher number of people that are harmed. Do the math!

    A recent study PROVED that doctors don’t do more tests in fear of lawsuits! Check it out: http://www.aboutlawsuits.com/unneeded-tests-not-due-lawsuits-48389/

    What insurance company is going to pay for extraneous tests when they often won’t cover the cost of the tests in the first place? It’s a myth!

    You think the lawyers are spending a lot of money on the campaign, take a look at the other side….they’re the ones running scared! The medical and insurance industries, which are rolling in the profits as it is, are planning on raising upwards of $80 MILLION to fight this proposition. Your NO vote not only means you’re approving of doctors being negligent, but also allowing the insurance companies to continue rolling in the profits! Less than 2% of their profits get paid out in lawsuit claims!

    Sure, why not?! Make them richer on the backs of patients being harmed and killed. You could be next and then you’ll change your tune!

    When you make this just about lawyers, you ignore all of us victims who have already been harmed by medical negligence. FOR SHAME!

  15. Prop 46 is a MONEY grab for RICH lawyers. That’s all this is. Where is the money going to come from? ME AND MY FAMILY. And the other tax-paying californians. My doctor will order MORE AND MORE tests just so she doesn’t get sued. That is, if she doesn’t leave the state all together.

    Think lawyers would have spent over TWO MILLION DOLLARS bringing this proposition to a vote if it weren’t to make them MILLIONS AND MILLIONS of MORE DOLLARS so they can buy a THIRD HOME in the hamptons or beverly hills?

    Come on, they don’t care about us Californians. They want another Porsche and who better to get it from than us innocent taxpayers.


    No surprise I guess that NO ONE trusts nor likes lawyers or politicians (usually one and the same anyways.)

  16. @Eric

    Good for you. When you’re done, why don’t you come to Colorado and see if you can pull off a hat trick?

  17. I see your point Talos, but what’s even scarier is considering the 87 year old male dying of pneumonia is an adverse event. But I could see that happening in these situations.
    I have concerns over:
    What is an incident? a death? or just an unexplained/unexpected death?
    5 doctors and how many ancillary personnel treated this patient?
    What if a nurse forgot to push the antibiotics when ordered?
    What if the &*()%$ EMR system didn’t tell someone they were supposed to push the antibiotic?

    On another note, I love the fact that all these entities are pushing for med students, NPs and PAs to be out providing primary care but yet
    “There’s no doctor shortage!”

    And by the way, testing with a 5 panel drug screen may turn up some potheads (and yes, medical marijuana users, there’s a lawsuit now from a marijuana positive PA in New Mexico for wrongful termination),
    and some cokeheads. But the real problem we’re seeing in Ohio and probably nationally is the oxycodone and hydrocodone that aren’t picked up on the 5 panel test. Seems to me if you’re going to test at all you might want to consider those.

  18. I don’t think so. From the legal online dictionary:

    or conj. either; in the alternative. It is often vital to distinguish between “or” and “and.” Example: Title to the Cadillac written “Mary or Bill Davidson” means either one could transfer the car, but if written “Mary and Bill Davidson,” both must sign to change title.

  19. I don’t think so. I just posted this in our Facebook group (of victim/advocates) and only one out of 28 responders had heard of it.

  20. Average person: no.
    Average person on a healthcare blog discussing hospital safety:Yes
    Average person on a healthcare blog discussing hospital safety and who is involved in an alleged hospital safety campaign and has a lawsuit against a hospital for the last 2 years: Most definitely.

    Verdict: troll or droll.

    Either way, I am done.
    May justice be served.

  21. “…hospitals shall conduct testing for drugs and alcohol on physicians as follows: (2) immediately upon the OCCURRENCE of an adverse event on physicians who were responsible for the care and treatment of the patient DURING THE EVENT or who treated the patient or prescribed medication for the patient within 24 hours prior to the event.”

    In legal logic, “or” is inclusive, meaning that every group named has to be included in the testing. If “and” is used, it means that it is exclusive, that a group has to meet all the requirements to be tested. If we use your definition of “or”, you would see everyone pointing the finger at everyone else, so Prop 46 mandates testing of every provider involved, every time.

  22. Seriously? You otherwise present yourself here as someone thoroughly versed in just how lethally bad the acute care space is, and what to do about it, but when you get challenged with respect to relevant particulars, NOW you are just some ordinary schmoe?

  23. @Talos –

    “You keep citing the 440,000 and yet you have not educated yourself on JCAHO.”

    I found it priceless that he didn’t even know what JCAHO is. Who needs ANY sort of basic knowledge when you’re angry and aggrieved? His is the “just ’cause…” argument methodology.

  24. It may very well be based on what a provider is expected to provide, but your assumption that doctors are going to give up their practice or move away because of Prop 46 is unrealistic. It’s the same type of propaganda that the California Medical Association is trying to swindle voters with and it’s not based in reality. We have other states that have banned their tort reform laws and the doctors didn’t pack up and leave in droves!

    Thank you for your long presentation on the pneumonia patient, but unless I’m wrong, the only doctor that will be tested is the one accountable for the incident. So the physician that sees the patient, the radiologist, the replacement physician, etc., will not be tested unless they were directly involved with the incident that harmed the patient or killed them. If the ED Physician #1 killed the patient by giving them penicillin when the chart clearly reads that the patient is allergic to it, the radiologist is most certainly not going to be drug-tested!

    If each and every one of those doctors was involved in the incident, why shouldn’t they all be drug tested???

    The proposition clearly states: “…hospitals shall conduct testing for drugs and alcohol on physicians as follows: (2) immediately upon the OCCURRENCE of an adverse event on physicians who were responsible for the care and treatment of the patient DURING THE EVENT or who treated the patient or prescribed medication for the patient within 24 hours prior to the event.”

    It doesn’t say AND, so it’s one or the other. If it’s clear how the patient was harmed, only the doctors involved in the incident itself will be drug tested. I assume if it’s unclear, they will all be tested, as well it should be to come to a clear conclusion as to who was responsible. Each doctor tested who tests positive should be relieved when they are excluded!

    To answer your question about marijuana, Section 4, Article 14 of the Business and Professions Code states: (d) “drug” does not include drugs prescribed by a licensed third party for a specific medical condition if the manner in which the physician uses the drug is not known to cause impairment.”

    I didn’t say the doctor shortage was bogus, don’t put words in my mouth. I said that passing Prop 46 would not lead to a doctor shortage.

    I honestly don’t have time right now to educated myself on the JCAHO…I apologize. I barely have time to answer these posts and work on my social media campaign to get the word out on Prop 46. I’m also preparing for the first deposition in my sister’s medical negligence death case. She died over 2 years ago and I’m having to refresh my memory on a lot of documents.

    I can assume, though, that the JCAHO is just as lax as the California Medical Board about issues such as this. A quick google search produced this…I did not read it, just the headline caught my attention: http://docsontheweb.blogspot.com/2008/04/how-to-be-annoying-and-useless.html

    I apologize for not having the time to research all you’d like…normally I would. I will make note of these things and try to get to them. If you’d like to stay in touch, my email is stopmicra@gmail.com

    If Prop 46 passes, I’m sure efforts will be under way to make drug testing national.

  25. “Your scenario of 300 people not receiving any care is not based in any kind of reality.” Its 3,000 and its based on the average panel size of a primary care provider. This is the number that that a primary care provider is expected to provide care for (some a little, some a lot) over a year. If the doctor is not there, then care cannot be provided.

    As to you only encountering one physician within the hospital, I would find that unusual in this current era of hospitalists, intensivisits, and the such. Let take a simple example of pneumonia presenting at the ED:

    1. 87 yo male presents with pneumonia to ED. ED physician #1 sees the patient, starts the work-up, orders oxygen (considered a medication) and IV fluids. Sent to X-ray for films.
    2. X-rays are done and read out by Radiologist #1, information and patient returns to the ED. 1 hour has passed.
    3. ED physician #1 checks out patient to ED Physician #2 and goes home. ED Physician #2 evaluates x-rays, orders antibiotics, inhalers, and admits the patient.. 4 hours since admission.
    4. In-house hospitalist #1 picks up the patient, does intake history, assesses patient, and writes orders for more medications to keep patient comfortable.
    5. 8 hours later (13 hours total), In-house hospitalist #1 turns patient over to In-house hospitalist #2. In-house hospitalist #2 notes that patient is breathing a little worse, orders chest x-ray and increases the oxygen.
    6. Chest x-ray is read by radiologist #2 and shows worsening pneumonia. In-house hospitalist #2 transfers patient to ICU and to intensivist #1.
    7. Despite best efforts, patient’s condition continues to worsen, and intensivist #1 feels a chest tube is needed. The chest tube is placed and, unfortunately, the patient dies at that point, suffering an adverse event.

    Right there is 5 doctors in less than a 24 hour period that will need to be tested to undergo alcohol and drug testing, and possibly 7 if you include the radiologists depending on the interpretation of the word “treated”. I would wonder how Prop 46 would treat a team of residents and their attending caring for a patient?

    Just wondering–California has medical marijuana dispensaries, so if a provider has a prescription from a doctor for medical marijuana and tests positive for marijuana, are they impaired or just under treatment?

    As to the California doctor shortage being bogus, I look forward to your explanation of why Gov. Brown thought it necessary to sign a bill on 7/18/2014 accelerating the development of doctors in the state “…On Friday, Gov. Jerry Brown (D) signed a bill (AB 1838) that will allow students enrolled in accredited medical school programs in California to become physicians in less than four years, the Sacramento Business Journal reports (Robertson, Sacramento Business Journal, 7/18)…In a release, Bonilla said the bill “is an innovative step towards addressing [the physician shortage] and meeting the needs of our communities without diminishing the quality of patient care” (Sacramento Business Journal, 7/18). ”

    You keep citing the 440,000 and yet you have not educated yourself on JCAHO. If JCAHO thought random drug testing and post-adverse event drug testing was part of the solution, JCAHO would have mandated it as part of the hospital certification process. And yet, they have not.

    If you want to get random drug testing of physicians in hospitals done nationwide, get JCAHO to make it a mandate. If you want to increase attorney fees for medical lawsuits, pass Prop 46.

  26. I’m responding, I’m not engaging. I will not go back and forth with you on issues that you want to distort for the attention.

    After watching the first 30 seconds of your video, I realize that not wasting my time on you is a good decision.

  27. I don’t think I’ve ever been in a hospital myself, and certainly not with my sister who I cared for for 10 years, where more than one doctor worked on us at a time. If during a surgery, I can assume that more doctors than 1 would be tested. Having said that, I’d certainly be willing to take a drug test as one of those doctors and be eliminated from blame when my test comes out negative!

    So what harm is Prop 46 going to bring that outweighs all the good it will do?

    The doctor shortage excuse is baloney. This is the same argument they used in 1975 when they passed MICRA to begin with. The NY Times did an article 10 years later that found 5/10 of 1% actually left the state. But the proponents of MICRA were swearing up and down that doctors were leaving the state in droves!

    We have 22 states with no medical tort reform and 13 have found it to be unconstitutional. There are no doctor shortages in those states because they don’t have tort reform and their healthcare costs are not high because of it. This chart shows that many states without tort reform have LOWER healthcare costs than states that do. AND New York which does not have tort reform has more doctors per capita than most states. http://goo.gl/69vWGa

    Your scenario of 300 people not receiving any care is not based in any kind of reality.

    People need to consider how willing they are to go to a doctor or hospital and becoming part of the 440,000 that die from errors and decide whether we need to worry about doctors having hissy fits over being drug tested when our entire military is randomly drug tested, while they protect us all from harm.

  28. I believe I am engaged in a dialogue.

    Prop 46 specifically mandates that for an adverse event, drug testing occurs “…on physicians who were responsible for the care and treatment of the patient during the event or who treated the patient or prescribed medication for the patient within 24 hours prior to the event.” So, its in Prop 46 that testing will occur on all the providers who gave care within 24 hours of an adverse event.

    I work in a field that deals with unintended consequences all the time and I believe that Prop 46 will harm more than any good that will come from it. Harm is harm, yes, that is correct, though now you have to measure the harm created by Prop 46 versus the harm solved by Prop 46. It is only when you measure those 2 values that you get the true measure of harm, ie. are you doing more good than harm.

    For a state already short of primary care doctors, the loss of a primary care doctor represents 3000+ people who will not be able to receive adequate healthcare because the provider choses not to practice in the state due to Prop 46. Most “bad” providers are already being driven out of work due to malpractice costs arising from adverse events, and while it is tragic that people will suffer due to this provider, it is likely to be less than 10 adverse events before the physician will be dropped by their malpractice carrier. On top of it, the majority of doctors are employed by large healthcare systems which take to seriously protecting their bottom line. If a doctor is costing them a lot of money due to errors, they are gone. Many healthcare organizations already do drug screening upon offer of employment, and medical licenses and background checks are done every 2 years on recertification of medical privileges, so if I have a drug arrest or DUI, my employer will definitely know — and if I don’t self-report to the Medical Board or my Employer regarding these types of occurences, my employment and license will be pulled.

    So, now you have 3000 people not receiving any care and possibly having adverse events ar home due to lack of medical care (harm due to presence of Prop 46) or the less than 10 adverse events that may be prevented with Prop 46.

    Harm is harm. Choices, like elections, have consequences. Please pick which population you want to harm.

  29. You’re just being argumentative now.

    It DOES apply to Prop 46. You’ve just manipulated your words to make it sound like it doesn’t. It’s ridiculous to say “we don’t drug test everyone who drove, fueled or worked on the truck in the last 24 hours.”

    Nothing in Prop 46 says we drug test everyone that works on a case of medical error or negligence either…just the doctor in question. Upon incident, a doctor is drug tested, just like a truck driver would be tested after an accident. Same thing.

    Both fields also have random drug testing on a regular basis despite any accidents happening.

    Harm is harm, whether it’s 1 person or 10. If we can prevent 1 person being harmed, it’s worth the effort.

    So if you drug test a patient, you can use his/her condition to prove that a doctor left a sponge inside them during surgery? I don’t get it.

    You don’t tell someone to pee in a cup because someone else screwed up…again, you’re just trying to be manipulative.

    You tell them to pee in a cup to send the message that we’re not going to put up with ANY doctors abusing drugs and showing up at work.

  30. You have only focused on the random aspect and not the entire drug testing section of Prop 46. My comments are directed at the entire drug testing policy.

    I would point out that your statement ” all kinds of jobs have random drug testing: truck drivers, airline pilots, school bus drivers and OUR ENTIRE MILITARY.” is factually correct though does not apply to Prop 46.

    If a truck driver has an accident, we don’t drug test everyone who drove, fueled or worked on the truck in the last 24 hours–we just drug test the driver. Same for airline pilots, school bus drivers, and the military. So, when you put the same rules in effect for those professions, I will be happy to review the data regarding job loss from those fields.

    Also, the difference between these professions and a physician is that while a physician’s risk of harm is usually limited to one individual at a time, all of your cited professions have the ability to harm a lot of people at the same time. This is why they are known as safety-sensitive positions.

    As to why a hospital would drug test their patient, the answer is simple: If I can prove that you were in a self-induced impaired state, then your intoxication would be used as a contributing and mitigating factor for the adverse event, especially if you denied drug use. It is the same principle in workers compensation laws in a number of states that if you test positive for drugs, your claim is dismissed due to your drug use.

    I am all for effective patient safety because I know what it looks like, and it starts with engaging the physicians for change, not telling them to go pee in a cup because someone else screwed up.

  31. Why would a hospital lose its certification if an independent doctor was at fault? Not all deaths from error are solely the hospital’s fault.

    Who said that “all those deaths” were due to drug or alcohol impaired physicians? No one.

    If you only drug test “innocent doctors,” those things just might occur. But think about it, all kinds of jobs have random drug testing: truck drivers, airline pilots, school bus drivers and OUR ENTIRE MILITARY. Do you see or hear about people in those industries growing tired and leaving the state or profession?

    If a doctor leaves his practice over random drug testing to keep patients safe, they shouldn’t be a doctor in the first place because they’re not putting their patient’s safety first….like airline pilots and our US soldiers.

    There are always going to be bad doctors who play the system. That doesn’t mean we shouldn’t try to keep the rest of them as good as possible. We have people who break gun and drug laws all the time…should we just stop trying to curb their illegal activity because a certain percentage of people don’t want to follow our gun and drug laws?

    You don’t test ALL the doctors, you test a random group randomly. So there will always be potential drug abusers in the whole set who aren’t being tested. You’d have to test all doctors all the time in order for your #3 to be true.

    As we start using these new patient safety laws, we’ll see what works and doesn’t work. Of course there are going to be changes. Why is that a negative? You fix things for the better.

    Why would drug testing a patient be used in defense against adverse events???

    I don’t know anything about the JCAHO, so I can’t speak as to whether it’s working or not.

    Prop 46 is not intended to be THE solution, it’s A solution.

    I remain that if a “provider” has a problem with keeping patients safe, they can go to another state or quit their job…I don’t really care. That will just give more work to the doctors who truly care about their patients to not have hissy fits over being drug tested and all the up and coming new doctors in the field, where testing will be the norm.

    Governor Brown just signed legislation to help get new doctors…so they’ll all know about drug testing coming into the field.

  32. Let’s discuss common sense and the the estimated 100,000+ deaths due to medical errors in hospitals.

    Common sense would say that if JCAHO, an independent ceritifier of healthcare organizations, was really doing their job of certifying good healthcare, a great number of those errors would not be occurring since hospitals would lose their certification. Has not happened.

    Also, common sense would be that if JCAHO was effective, the overall rate of hospital-related medical error deaths would be going down. Has not happened.

    Common sense tells me that it is extremely unlikely that drug or alcohol impaired physicians are responsible for all those deaths.

    Common sense tells me if I start drug testing a whole bunch of innocent doctors over and over again, the following scenarios could occur:
    1. The innocent doctors will grow tried of being drug tested and will opt out of the system by leaving the state or the profession. Remeber these are smart people who could do lots of different things than just medicine. If you don’t believe that, look at the number of providers leaving practice due to PPACA. Also recall that the program continues even if you find all the “bad” doctors.
    2. The innocent suffer while the bad doctors continue to game the system. These are doctors who are very good at hiding problems.
    3. All the “bad” drug and alcohol-impaired doctors are identified, treated, and no one tests positive for a year, a year in which there is no change in the rate of adverse events or hospital-related medical error deaths.
    4. After 2 years and the pain of the transition into the program, it is suddenly determined that the State also needs to test PA-Cs, APNs, and RNs treating patients.
    5. Hospitals start screening all patients on admission for illegal drug use to use in defense against adverse events.

    So, we still have JCAHO certifying hospitals though the rate of injury remains the same, most hospitals drug screen their doctors when they are hired though the problem of impaired physicians still persists, and more testing is thought to fix all these problems.

    Common sense tells me that:
    1. JCAHO is not working
    2. Drug testing only weeds out the addict who can’t ever stop
    3. Prop 46 is not the solution, unless the problem you are trying to solve is how to discourage providers from working in your state.

  33. I thought you were not going to engage me further. To the extent that you are an emotionally overwrought anecdotalist, you negate your own case. The world is overpopulated with uninformed doomsayers who do nothing more than decrement the signal to noise ratio.

    But, hey, Free Speech.

    “There is [sic] nowhere NEAR that many cases ending up in court with doctors and hospitals being found guilty.”

    Maybe there’s a reason for that.

  34. There are between 200,000 and 440,000 deaths from medical error every year. That’s JUST the people who actually die. There are even more people who are harmed by error and negligence who live. There is nowhere NEAR that many cases ending up in court with doctors and hospitals being found guilty.

    Empirically shmempiracally. It’s called common sense.

  35. Your hyperbolic, simplistic views, and mischaracterizations of mine, are really poignant.

    “negligent doctors and hospitals are getting away with it most of the time.”

    You simply have no way to back that up empirically.

  36. No, it’s certainly far from perfect, but drug testing does catch some people. And I believe it’s the knowing that it’s possible that keeps a large number of rational people from misbehaving, when they otherwise wouldn’t if the test didn’t exist.

    How many more people would speed at unsafe speeds if there were no laws saying there is a limit? How many more kids would take handfuls of candy on Halloween if there were no sign saying “Take just one.”

    We put limits and laws in place hoping people will understand why, and I think most people do understand and do obey them for the better good.

    BobbyGVegas can complain all he wants and lord his “expertise” over people all he wants, but I believe that we have to start somewhere or we’ll all be in grave danger. If this doesn’t work perfectly, I’m sure it’ll be fixed.

    But right now, too many people are dying, for lots of reasons, and negligent doctors and hospitals are getting away with it most of the time.

  37. Isn’t the whole essence of being a doctor to do what’s best for the patient? I believe it’s even part of the medical board agreement that doctors are to put patients first, even above any financial gain.

    I can’t imagine why any doctor would complain about any portion of what’s in Prop 46, whether it’s the best solution or not. It’s certainly far better than what we have now, which is basically a law that prevents victims of medical negligence from getting to court and if they do, limits the value of their pain and suffering to $250,000. Currently, doctors do not have to use the CURES database, less than 6% use it even though they know it will cut down on doctor shopping patients and pill mills. Both Florida and New York have seen dramatic drops in their drug problems with the institutions of their databases. And finally, if I were personally holding the life of another in my hands, I wouldn’t flinch at having to be randomly drug tested.

    I took care of my disabled sister for 9 years; she was mentally retarded with the learning ability of a 4-year-old. There were times I would have love to have gone out and gotten drunk, but I never did because I knew that if she needed me in an emergency situation, I’d need to be there for her.

    Doctors choose their profession like anyone else and know what it entails when they go into it…or at least they should. The doctor’s creed says “Do No Harm.”

    Yet….some of them ARE doing harm…a great deal of harm.

    I think it’s unconscionable that anyone has anything negative to say about this proposition. I think some people just enjoy being contrary.

  38. Eric, focus on what I just said above.

    “It is true that not proving guilt leaves open the possibility of letting a guilty person go free, but we consider him innocent of the crime nonetheless.”

  39. Also, the drug test is not proof that the doctor was impaired at the time of the “incident”.

  40. What drug tests are to be done?
    A 5 panel DOT look-a-like?
    A 10 panel test?
    Will the test go through a Medical Review process before the result is finalized?

  41. I’m not a lawyer, I don’t really know the libel laws.

    What you describe happens all the time, though. Even though we say “innocent until proven guilty,” people often sit in jail for a long time before they ever get to court. Why would someone be punished like that if their considered innocent?

    But no, I don’t agree that’s what my comment means. First, there’s a difference between being accused of a crime and being found not guilty. My comment is about the latter. Just because someone is found not guilty in court, in no way means they are automatically innocent.

    As int he case below, it’s pretty clear that the person is guilty, but due to a technicality, gets away with it…for a while anyway. There’s also the case of the father in Texas who caught someone molesting his daughter and just about beat him to death. He went on trial and was found not guilty. But if the assailant had died, should we consider him innocent since he wasn’t found guilty in court? What if he went to court and the lawyer screwed up and he got off anyway? The father saw him molest his daughter, but dos that make him innocent?


    DELAWARE, Ohio –
    A convicted child molester who spent more than ten years on the run was expected to be sentenced Friday, but instead, a technicality allowed him to withdraw his guilty plea.

    Frank Hertel is accused of rape and gross sexual imposition in connection with years of abuse that allegedly began more than 20 years ago.

    Hertel fled to Germany in 2000 while on trial for similar crimes in Arizona, and while under indictment in Ohio.

    He was eventually caught and extradited earlier this year. He returned to Arizona, and is serving a 20-year sentence. He was brought to Ohio to answer to additional charges and pleaded guilty in November to three counts of rape and two counts of gross sexual imposition.

    However, the language prosecutors used in the plea agreement did not specify the mandatory sentencing for rape, and as a result, Hertel was allowed to withdraw his plea.

    A trial has now been set for March.

    Prosecutors said the victim will testify during the trial.

    “This impacts her on a daily basis. The fact that she is able to overcome what this man did to her is phenomenal and she just decided, ‘I’m not going to let him win,'” said Delaware County Prosecutor Carol O’Brien.

  42. OK Eric A, I believe you. Therefore, If another accused you of being a pedophile and rapist and you were found not guilty I can accuse you of being a pedophile and rapist without having to worry about libel.

    It is true that not proving guilt leaves open the possibility of letting a guilty person go free, but we consider him innocent of the crime nonetheless.

  43. Good stuff.

    “forensic drug testing”

    Most people are blissfully unaware of the difference between “forensic” and “clinical” level assays.

  44. Prop 46 does not allow for instant drug testing of doctors. Prop 46 specifically states that the law will be 2350.25(a)(2) “Testing shall be the responsibility of the physician, who shall make himself or herself available for testing at the hospital as soon as possible, and failure to submit to testing at the hospital within 12 hours after the physician learns of the adverse event may be cause for suspension of the physician’s license.”

    So what does this really mean in practical terms?
    (1) The doctor has 11 hours 59 minutes before they have to present to the hospital for drug testing after notification of adverse event. Plenty of time to sober up and obtain any thing they need to beat the test.
    (2) The law specifically states that physician report to the hospital. Hospitals are generally not set up to do forensic drug testing with appropriate chain of custody, so the hospital will have to set-up a 24/7 system for collection onsite, since the law states that “for testing at the hospital”. Most drug testing is thrown out due to errors in collection, so I expect there to be booming business for lawyers fighting drug testing outcomes on procedural errors in collections.
    (3) Most attorneys would claim that the hospital is an interested party in any legal action regarding the adverse event, so that having the hospital perform the testing will be questioned by both sides no matter the outcome of the drug and alcohol testing.

    Just my experience.

  45. What does drug testing the plaintiff attorney have to do with losing the case? The only reason you’d drug test him/her is if there was evidence of them being under the influence. But yes, I’d be for that.

    Prop 46 allows for instant drug testing of doctors upon incident. Generally, lawyers don’t hold people’s lives in their hands like doctors, airline pilots, bus drivers, etc., so drug testing is less of an important issue.

    As for your last paragraph…yes, exactly. That’s why with the passage of Prop 46, the cap will go up and better attorneys will be able to take on the medi-mal cases. Victims won’t have to rely on any old lawyer who may or may not have the expertise to try the case. One of our worst case victims, the lady who got flesh eating disease at the same hospital my sister was in, had a lawyer who totally flaked out on her….he wouldn’t even show up in court. She ended up doing a lot of it herself, but eventually the case was dismissed, so the hospital got away with it.

    But whether a victim can get a lawyer good enough to try their case isn’t an issue that Prop 46 deals with. I agree with you that there should be ramifications for lawyers who don’t do a good job….and maybe there is. That’s not my expertise. But we can hire not-so-great people in any line of business, not just lawyers. I’ve certainly had my fair share of bad contractors working on my house and screwing things up.

  46. Yes, the system has been set up this way. My question is:
    Is there a better way to do it? As a physician, we still have family members who get sick and can be victims of this system as well as ourselves. Why not find a way to make it better to sort out how and why errors occur and if there is gross negligence, get restitution and some type of consequence for the perpetrator that will keep others from harm?
    What we have now is Russian Roulette.

  47. “Just because a doctor wins his case, in no way means that he wasn’t negligent…it just means that the plaintiff didn’t prove his case. ”

    Yes, true. Does this mean we should drug test the plaintiff attorney and sue for legal malpractice?
    If you see that 78% win, and you assume some or all were at fault, what has been accomplished?
    If a dcotor is truly negligent and either wins or loses the case (and insurance pays) the doctor is still free to practice albeit poorer because the premiums will now go up. What has been accomplished?

  48. I see what you’re saying, thanks for clearing it up. I don’t disagree with you for the most part. Unfortunately, this is how our system is set up and we have to try and work within those confines.

    I think you’d find that a lot of medical negligence victims care less about the financial settlement for pain and suffering and more about accountability. The doctor in my sister’s case, has been cocky as heck and refuses to admit to any wrong-doing, even though he was wrong in a number of areas. I even fired him and he was so belligerent, he continued to access my sister’s records and work on her case, which at the very least is a HIPAA violation.

    I am all for finding ways to make doctors and hospitals more open with their information and investigations after an incident. It’s partially because they clam up and become deceptive that things escalate.

    As for defensive medicine, a recent study of the VA system, where doctors are not as liable as doctors not working in the VA system, proved that their doctors practiced just as much defensive medicine as doctors outside the system. So they aren’t prescribing more tests just to avoid lawsuits because there aren’t as many lawsuits inside the VA system, at least not for the doctors themselves.

    Yes, there is surely an amount of “frivolous” cases that are annoying to doctors. But that happens across the board in all fields of work. Doctors can’t be singled out as special and have rules that protect them from such frivolous cases when other people experience the same thing.

    Fortunately and unfortunately, we all have the right to sue people in this country. I’m not sure there is a way to get around the annoyance cases.

  49. I think you’re missing the point of my statement.

    (1) Current pain and suffering limits are at such a level that lawyers may not have the proper incentive to take on all appropriate negligence cases
    (2) To redress this, one solution is to raise the pain and suffering cap
    (3) I think it is a little odd that we are using pain and suffering as a backdoor financing/incentivizing mechanism to get legal redress
    (4) Alternatively, there might be other out of the box solutions to obtain the proper incentives (of which arbitration is just one idea)

    In regards to “There are virtually no “frivolous” cases that ever make it in front of a jury for at least three reasons”. I have no doubt you are correct. A related statement would be “There have been many frivolous or otherwise not meeting the standard of negligence cases that do not go to trial that have very real negative costs to society in terms of discovery, pay to go away, defensive medicine, etc…”

  50. Sorry I gave you that impression, I certainly don’t think that. I concede that MOST doctors are good people who do good work….I love my family physician. When I get into these debates, I tend to speak of all docks generically, and that’s unfair. I try to always preface “doctors” with “negligent.”

  51. There are virtually no “frivolous” cases that ever make it in front of a jury for at least three reasons:

    1. Lawyers take medi-mal cases on a contingency basis, and stand to lose every dime they put into the case should the case be lost. So what lawyer is going to knowingly take a frivolous case, knowing full well that they’ll lose all their money??

    2. It is against Federal and State law to file a frivolous lawsuit as well as against the Bar Association rules. Again, what lawyer is going to knowingly risk losing all their money AND risk sanctions for doing so??

    3. Summary Judgment weeds out cases before they ever reach a jury.

    Also, your post assumes that doctors and hospitals are going to continue to be negligent at the same rate as they are now. The purpose behind Prop 46 is to curb that negligence which in turn would lower lawsuits.

    Arbitration is what sucks…have you never participated in arbitration? I did. The other side decided that they weren’t going to pay for their share of the arbitration costs so I had to pay it all, upfront, myself. They lost, the defendant died and his son filed for bankruptcy, so I never saw my judgment or a reimbursement of the exorbitant arbitration fees.

    Medical malpractice lawsuits comprise about 2% of all healthcare spending in the US.

    Insurance companies have been rolling in the profits ever since the advent of “tort reform.”

  52. JCAHO is the Joint Commision on Accreditation of Healthcare Organizations and responsible for certifying hospitals. After finally finding the entire body of the standard on the California Sec. of State’s website, I was amazed to find that Prop 46 does not reference JCAHO at all.

    As a medical review officer, I know that the general population has a positive random drug test rate of around 5-6%, so that for every 100 people I check, 5-6 will be positive. In populations with greater economic interests on the line, I would expect a greater amount of cheating, and in an educated population such as doctors, I would expect some very interesting cheats.

    Upon review of the complete standard, Prop 46 only tests for the NIDA 5 (marijuana metabolites, cocaine metabolites, amphetamine (not metabolites), opiod metabolites, and phencyclidine (PCP). Absent from the list are benzodiazepines, designer drugs, and others (such as LSD and psychotropics). So the doctor taking valium because he is nervous about Prop 46 will test clean.

    In regards to random testing, Prop 46 does not set a standard at which random testing is to occur, so I have no idea if that means I have to randomly test the entire population of doctors every week, month, year, or every 10 years.

    Prop 46 also includes the language that “2350.20 Every physician shall, and any other person may, report to the board any information known to him or her which appears to show that any physician may be or has been impaired by drugs or alcohol while on duty, or that any physician who was responsible for the care and treatment of a patient during an adverse event failed to follow the appropriate standard of care. Not withstanding any other provision of law, any physician or other person who in good faith makes such a report to the board shall not be liable under any law of this state for any statement or opinion in such report.” Love the “shall” since pretty much mandates either report or suffer the consequences. And if someone wants to destroy my practice by making false reports, I have no recourse since I first have to prove that that it was not good faith reporting.

    Also, according to Prop 46 verbage, all doctors who admit to the hospital or who are employees or contractors to the hosptial will have to be drug tested (frequency unknown).

    Finally, the adverse event requires that drug testing occur immediately “on physicians who were responsible for the care and treatment of the patient during the event or who treated the patient or prescribed medication for the patient within 24 hours prior to the event. ” Taking this literally, it means drug testing a lot of code team doctors and a lot of doctors.

    Will this change anything? Yes, and not in a good way.

  53. I don’t know, that phrase plus “cocky and negligent” makes me think you look at docs as waking up in the morning saying “who can I hurt today?”

  54. Setting aside the oddity of linking physician drug testing and amending MICRA limits in a single proposition….

    What we are really talking about here is the proper financing mechanism for investigating and redressing negligence claims. Right now, the current monetary cap for pain and suffering is often too low to entice lawyers to take cases, thereby leaving some victims uncompensated, though helping to limit frivolous cases. We could increase the pain and suffering amount, with the trade-off that there would be more cases/higher costs (both more legitimate and more frivolous cases). It’s either that, or we starting thinking out of the box. This is not a lawyer good/bad or doctor good/bad thing.

    Either way, I think the current system sucks. I’d favor a move to more of a sealed binding arbitration setting with professional jurists that are well versed in negligence law and medical terminology. This would hopefully cut way down on costs as norms about what does constitute/does not constitute negligence became more standardized, requiring less background investigation…ideally to the point that it would be cheaper for insurance companies to pay out legitimate cases and lawyers would be hesitant to bring frivolous suits.

    Just thinking out loud here. Either way, it’s all about incentives.

  55. It’s difficult to find a positive in randomly drug testing doctors???? That just makes me think you don’t want to find a positive. Catching doctors who have drugs and alcohol in their system is going to help curb them working on patients in that state!

    Prop 46 WILL test doctors in hospitals upon incident. I thought you read all the documentation.

    I’m not sure what you’re talking about in reference to the drug database. Are you in California? It is currently not mandatory for doctors to check the database before prescribing Schedule II and III narcotics to new patients. Only about 6% of doctors currently do that.

    I don’t know what JCAHO is.

    Trial attorneys are still covered by the sliding scale provided by MICRA on out-of-court awards.

  56. Eric, people are innocent unless proven guilty.

    In other countries one has to prove themselves innocent, not in the US.

    In essence your comment means that every person ever accused of crime is “not innocent”.

  57. I’m not sure how you jumped to that conclusion from what I wrote. All I meant was that they’re not as careful as they should be because they know there is little repercussion to their actions.

    The medical board is nearly useless in policing these situations as well.

  58. “Yes, I believe that malpractice lawsuits help solve the problem. MICRA has been a law since 1975, protecting negligent doctors and hospitals from litigation. In that timeframe, acts of negligence have skyrocketed. They know they can get away with it! ”

    You mean they’re sitting around rubbing their hands thinking now they can go out and commit murder and mayhem? Sounds more like pirates than healthcare professionals.

  59. And with that I’ll agree. But we’re not talking about things that are out of a doctor’s control. The standard of proof in court has to be that it’s something that most doctors wouldn’t do in the same instance. We’re talking about clear cut actions of negligence and error, not things affected by circumstances beyond their control.

  60. So far, after reviewing the documentation and comments, I have yet to see the outcomes to be achieved by this legislation except to increase awards and increase the problems with practicing medicine in California.

    As to random drug testing doctors, its difficult to find a positive in that group. On the other hand, if you tested for drugs post-accident (post-incident), then you might find some more positives, though this would also mean testing everyone involved in the incident, including the patient and other staff.

    As to having access to narcotic drug prescribing databases, it is expected in my organization that opiod prescribers will check the state database on a regular basis, along with pharmacists who also check on a regular basis.

    I believe that it is wrong to claim this legislation is for patient safety. How am I sure of this? Simple–JCAHO has been mandating changes for 50+ years, holds the cash flow of hospitals in their certifying hands, and there are still over 100,000+ hospital-related preventable deaths.

    So, all I see is that Prop 46 is giving the trial attornies more leverage for higher out-of-court awards.

  61. Freudian slip, meant doctors. Meaning errors, mistakes, etc may be caused by a combination of things/or people resulting in harm to a patient, not just the doctor not doing his/her job. Just like a pilot in a plane cannot control the weather, there are other factors beyond a doctor’s control that may result in harm or a bad outcome, but not directly the doctor’s fault.

  62. “If you think in dichotomies you will be forever satiated but almost always wrong.”

    A thing of beauty, that.

    It was Deming who pointed out that “there is no exact value of anything.”

  63. As my mother always said, “It’s only the truth that hurts.”

    You’re clearly here just to be provocative, so I will not engage with you further.

  64. “As I see it the only ones winning in the current system are the attorneys, even if you up the awards.”

    Agree. The Rule of Lawyers.

  65. “You don’t see REAL researchers calling names when someone doesn’t agree with them.”

    Cue the violins.

    Dude, I once presented a paper I and one of my Sups (a PhD Health Physicist) had written at an EPA radiochemistry conference in Oak Ridge. I can assure you that you are wrong there as well. The Q&A was, shall we say, bracing. But, keep digging. The “drama-queen” cut was particularly enjoyable.

  66. “Clearly it’s a “power” that you come by easily.”

    Gray is tough. Which is why “black and white” has been a convenient heuristic for our species for the last however many thousand years.

    Which is why it is difficult shedding this heuristic when analyzing alleged medical negligence.

  67. You’re just a bit of a drama-queen. It’s not childish in the least. Bullying hadn’t crossed my mind until you brought it up.

    Lots of people research things and come to conclusions that they want to come to. If you have an agenda, conscious or un, you can come to any conclusion you want, even if it’s not based in any kind of reality.

    You can’t even have a decent conversation about it without making personal attacks so that clearly points out that you must not trust your POV very much. You don’t see REAL researchers calling names when someone doesn’t agree with them. You feel the need to use words that people don’t use in every day conversation to bolster your faux superiority.

  68. Clearly it’s a “power” that you come by easily.

    Who said medicine was an exact science? We’re not talking about acceptable mistakes here. We’re talking about actual errors and negligence that is documentable and provable in court.

    If I go in for surgery, I have a reasonable expectation that EVERY effort is being made to make sure the OR is clean and germ-free. I have every reasonable expectation to believe that all safety protocols will be followed and they won’t leave a sponge inside my body that will fester and become septic. I have every reasonable expectation that doctors and nurses will check to see if the medication they are giving me is appropriate, correct and in the correct dosage AFTER they’ve given me a complete historical and physical examination. I have every reasonable expectation that they’ll wash their hands, wear gloves and masks, etc.

    But when those reasonable expectations don’t happen, people are harmed and killed. In these types of cases it IS black and white.

  69. “It’s hardly hyperbole, it was a response to you saying that I’m “WAY in over [my] head with [you] on this issue.” Why else would you say that except to try and scare me into not taking this issue on with you?”

    Yes it is, and your choice of words like “scare” is telling. It is childish. I suppose next you’ll accuse me of “bullying” you. They’re just words in a comment box.

    My “opinion” on drug testing is heavily researched and documented and borne of long experience. I began my white collar career in the 80’s doing quality control in a forensic bioassay lab (I published while there). I have a firm grasp of the technologies, the methodologies, the Bayesian statistics of “sensitivity” and “specificity” and “prevalence.”

    All you bring to the discussion are sophomoric broad-brush assertions such as “if it saves one life it’ll be worth it.” That is demonstrably not true. In over your head. Nuance is not your strong suit.

    Tangentially apropos, if we just arrest EVERYONE, we’ll catch ALL of the “terrorists” — perfect 1.0 “sensitivity.” With concomitant zero percent “specificity.”

    In that context, see my 1992 htttp://bgladd.com/Total_Information_Awareness

  70. Depends on the severity of the case. In my sister’s death I think punishment and loss of license is in order. It’s not about the money for me, but that is the way our judicial system works.

    Yes, I believe that malpractice lawsuits help solve the problem. MICRA has been a law since 1975, protecting negligent doctors and hospitals from litigation. In that timeframe, acts of negligence have skyrocketed. They know they can get away with it! They know even if they lose, their insurance is going to pay for it.

    Maybe you’re not aware, but here in California, the MICRA law limits attorney fees based on a sliding scale. The higher the jury verdict, the more of it goes to the VICTIM, not the attorney.

    Do you also realize that attorneys take these cases on a contingency basis, meaning they front all the money to bring these cases to court? If they lose, they lose every dime they put into it! That’s quite a risk to take…why shouldn’t they be paid handsomely for taking on that risk?

    I could never afford the $100,000 or more to bring my sister’s case to court so I’m very grateful that an attorney took on that risk for me. If we lose, we’ll still be liable for the other side’s court costs, which were paid by the rich insurance companies.

    I’m not sure what you mean by “many of these deaths and injuries you discuss may be related to healthcare workers other than attorneys.” Why would the deaths and injuries be related to attorneys?

  71. “You choose to make the word “preventable” gray.”

    You accord on me such powers!

    I’m only telling you the way things are. Medicine is not an exact science. There is an information problem. Often it is a case of devil and the deep blue sea. Often the outcome determines the appropriateness of the process, but during the process one does not know the outcome.

    There is much more to this than a Manichean black and white.

    If you think in dichotomies you will be forever satiated but almost always wrong.

  72. What do you want from this system? Money for a bad outcome/negligence? Punishment for the doctor? Do you want the doctor to lose his/her license? Should the doctor undergo retraining? Also note that many of these deaths and injuries you discuss may be related to healthcare workers other than attorneys. Do you believe continued malpractice lawsuits will solve this problem? I only ask these questions to get an idea about what people expect from a tort system.
    As I see it the only ones winning in the current system are the attorneys, even if you up the awards.

  73. Therein lies the problem. You see it as an argument, I see it as a debate. I’m not the least bit “fuming,” that’s just your overactive imagination reading something into it that simply isn’t there.

    You choose to make the word “preventable” gray.

  74. If believing that helps you sleep better at night, I’m pleased.

    In my experience, arguing about this topic with someone positively fuming with anecdotes, many personal, is a fool’s errand.

    Which is not to say that people aren’t harmed by the medical system.

    It’s to say that their harm does not make the term “preventable” any less gray than it actually is.

  75. So you don’t know what information is included in the CURES database and you don’t know why people would want it?

    The pharmaceutical companies don’t use or access CURES.

  76. It’s been known for years that prescribing information is big business (http://bit.ly/1ruYYYU).

    Looks like California voters will have a chance to answer your questions!

  77. It’s hardly hyperbole, it was a response to you saying that I’m “WAY in over [my] head with [you] on this issue.” Why else would you say that except to try and scare me into not taking this issue on with you?

    That’s simply YOUR opinion on drug testing, and in no way is it based in truth. And just because you say something doesn’t make it so.

    You clearly DON’T know this topic in great depth, you only know your chosen point of view about it.

  78. As I foretold, this is a very emotive topic and unlikely to cultivate a rational discussion.

  79. Don’t you mean what is error and what is a mistake? Most errors are preventable with great caution and safety measures.

    My sister was given 2 drugs that were contraindicated for each other as well as having 6 or more contraindications for taking the drugs at all. The doctors didn’t do an exam, didn’t take a history, didn’t even check her prior hospital history before giving them to her. The portion of her death from those drugs was no mistake, it was negligence, and totally preventable.

    Hospital acquired infections are very much preventable, yet the hospital where my sister died has a 68% higher infection rate NATIONALLY. That’s unacceptable.

  80. “Scare you”? LOL

    You need to dial back the hyperbole. Random drug testing is NOT worth in the aggregate, for the myriad documented reasons detailed in my grad work. http://bgladd.com/drugwar

    “Whether labs wanted mandated or not has no bearing on whether drug testing actually works and is useful”

    It has EVERYTHING to do with it. Again, I know this particular topic in great depth. You do not.

  81. Do you know what information is included in the CURES database? Why would anyone want it? Why would anyone care what medications I’m taking?

  82. The patient data in CURES is about as immune from hacking at Bitcoin, Microsoft and the U.S. military: it’s not a matter of IF but WHEN (http://bit.ly/1k3E6Ji). California voters can decide if their name and prescription data have any monetary value.

    That’s not the sound of black helicopter rotors, but a sucking sound of confidential patient information heading to Russia.

  83. If I’m not mistaken, the study is referring to the cases that actually make it to court, not all cases of medical negligence or error. MOST cases never even make it to court for doctors to “win.”

    Just because a doctor wins his case, in no way means that he wasn’t negligent…it just means that the plaintiff didn’t prove his case.

    Considering that most cases never make it to court, mostly due to tort reform laws across the US, far too many doctors and hospitals ARE getting away with malpractice.

    Here in California a victim only has 1 year to file a case of medical malpractice. Because MICRA limits pain and suffering damages, most lawyers won’t take these cases unless there are large economic damages. However, MICRA also discriminates against a large percentage of our population (women who don’t work, senior citizens, children, the disabled), who often have no economic damages, and only qualify for the pain and suffering damages that MICRA limits.

    So in the case of my disabled sister, she basically had no economic damages, and only qualifies for the $250,000 capped amount. It took me over 8 months to find a lawyer who would take my case, with dozens turning me down citing MICRA. Had 4 more months passed without filing my lawsuit, I’d have been out of luck and the doctors and hospital would have “gotten away with murder” so to speak.

    So yes, far too many are getting away with malpractice!

    So number 1 is NOT the answer….not even close.

    As I mentioned in another post, of the cases that do make it to court, if the doctor is being sued “unnecessarily,” it will get thrown out early on during “summary judgment.”

    But you’re right, the system is not working. One way we’re trying to fix it is to pass Prop 46 which will raise the MICRA cap for the 39 years of inflation that have passed it by, allowing legitimate malpractice cases to once again make it to court.

    As it is now, doctors have become used to the safe haven that MICRA has created and they’ve become cocky and negligent….hence the upwards of 440,000 deaths from medical error every year.

  84. Here’s an interesting statistic. A study done by NEJM a few years ago shows that 78% of the time doctors “win” malpractice lawsuits. Winning of course is a relative term.
    This says one of two things:
    1. Far too many doctors are being sued unecessarily.
    2. Far too many doctors are getting away with malpractice.
    If you discount settlements ( in which case doctors settle because they are likely to lose in court or the cost in time and money is not worth to fight the case in court), I think number 1 is the answer.
    Either way it doesn’t appear that the system is working. Would you let a surgeon work on you with those kind of statistics?

  85. Aww…so the rich doctors making tons of money are going to have to spend a few bucks to help insure patients that they aren’t stoned? Let’s get out the violins.

    First, it would have been beneficial to the discussion if you had actually read the proposition before coming here and slamming it. Now I’ve got to instruct you on it because you chose not to be informed.

    Random drug testing is NOT useless, but that’s what the medical/insurance industry wants voters to think.

    I personally won’t be testing anyone, but the law calls for the same Federal drug testing standards as airline pilots. If the doc “produces” a prescription, it had better be legit because it will be researched.



    No, they aren’t going to test ALL physicians, they’re only going to test doctors who work in hospitals. This is just the first step in cracking down on medical so-called “professionals.” It clearly wouldn’t have worked if we had asked for testing across the board…you have to take baby steps.

    But you’re right, lots of hospital staff members can “kill someone.” It was a nurse who stood around doing nothing while my sister was in cardiac arrest, erroneously thinking she was a DNR when she wasn’t. It was a nurse who couldn’t get an IV in her arm so she laid a bag of antibiotic on the tray table for house while sepsis was overwhelming my sister’s body.

    I can’t speak to your last paragraph…I have no idea what you’re talking about.

  86. OMG I find myself in complete agreement with BobbyGvegas on this one!

    RANDOM drug testing of physicians is expensive, wasteful, and completely useless. This is not to be confused with monitoring of people who are actually in a treatment program. That has its place and clearly is not a violation of due process.

    BTW, what are you going to test for? marijuana? (legal in lots of places now). Opiates? The doc will produce a prescription. Crystal meth? yeah, that’s a big problem with physicians cooking and smoking meth, right? Maybe where you are there are docs staffing ER’s while moonlighting from their day gig as a Hell’s Angel, but not much of that where I live.

    Who are you going to test? all physicians? Just the ones who are on staff at XYZ hospital? Just the surgeons? anesthesiologists? What about private medical practices? What about the hospital administrator? What about the OR nurses, the CRNA’s, the lab techs? Can’t any of these “kill someone”??

    If you are looking for a “work relief act” for lawyers, then tell doctors (who are already hyper-regulated by State Medical Boards, CMS, etc.) they have to pee in a cup in order to practice medicine. You will see a hailstorm of never-ending litigation that will make gun control or abortion look lame by comparison.

  87. Is that supposed to scare me? There are people that think all kinds of useful things are a waste of resources, that doesn’t make it so.

    Whether labs wanted mandated or not has no bearing on whether drug testing actually works and is useful. Even if I concede with you that labs are doing that, random drug testing still works to keep some employees honest and drug-free.

    Saving just 1 life is always worth the effort.

  88. Son, you are WAY in over your head with me on this issue. Random drug testing is a waste of resources. Which is why the piss labs always want government and other entities to have it mandated for them.

  89. How does it amount to extortion if it goes to court and is heard by a jury? The defense attorney can use Summary Judgment before it ever even reaches a jury to call the validity of the case into question. If the judge finds there’s reason to proceed, a verdict is hardly going to be extortion.

    I don’t think you’d be saying that if you were sitting there without your arms and legs due to medical negligence. And it’s not anecdotal…go to http://www.38istoolate.com and read the non-anecdotal stories of medical negligence JUST in California in the last decade.

    Why do you feel the need to write in such a way that makes it difficult for people to understand what you’re saying? “Totemic anectdotal,” and “Kabuki leverage?” Come on.

    You’ll NEVER see “loser pays” in this country.

    An innocent and competent doctor should have nothing to worry about if he/she gets called to court. IF they make it past summary judgment, there has to be evidence before they’re found guilty. Further, over 70% of medi-mal cases are found in favor of the doctor because jurors want to trust that their doctors are good people and don’t do malicious harm. And that’s basically true. It’s only about 5% of all doctors created the bulk of the medical negligence harm.

    Anecdotes help people understand situations. The stories I choose are based on real people.

    We’re not talking about perfection here, we’re talking about doctors who make errors and are negligent, not simple mistakes.

  90. And that’s a rap!

    Wow, I find myself in complete agreement with @BobbyGVegas.

  91. We can come up with all kinds of totemic anecdotal horror stories. MedMal absent Loser Pays simply amounts to extortion much of the time. Everyone knows that the spectre of the courtroom showdown is simply Kabuki leverage to get a settlement from the doc’s carrier (that the plaintiff knows the doc has to have). I would favor broad liability reform, with Loser Pays in the mix (in addition to longer time spans for filing).

    I’d also like to see more stringent liability applied to lawyers. We basically have to hire lawyers to protect us from other lawyers. We don’t have a “Rule of Law,” we have a “Rule of Lawyers.”

    So, in the converse, you’re arguing that an innocent and competent doc should get dragged through an action in the wake of an adverse clinical outcomes, found “not liable” by a court of jury, and have to pay (monetarily and psychically) for the privilege? We can trade anecdotes all day long. Policy is about rational, aggregate benefit to society, knowing full well that it can never be perfect.

  92. Corporate welfare? LOL…good god.

    Even if that were true, and I don’t believe it is, how can you totally disregard the good that comes from random drug testing? Do you really want to fly on an airline that doesn’t have random drug testing of its pilots?

    Do you really want to risk ending up in the ER and getting a doctor who’s stoned?


    “”Dr. Candelaria was administering anesthesia (believed to be Demerol) intravenously to a patient in the operating room while simultaneously administering the drug to herself via an additional intravenous line.” A medical assistant also in the room at the time, said Candelaria then passed out.” http://goo.gl/ahvgkr

  93. So if you go to the hospital, Bobby, and through negligence contract a hospital acquired infection that leads them to have to amputate all your arms and legs (and I know 2 people that this happened to), and you then struggle for months looking for a lawyer to take your case (you only have one year to file or you’re out of luck), and end up with a crummy lawyer who botches the whole case and you lose, do you really want to get stuck paying all the court costs from the other side??? It can be in the hundreds of thousands of dollars!

    Loser pays often punishes a victim a second time!

  94. Where did I claim that my lawyers were negligent? I think you mean the doctors and hospital. My lawsuit “claims” medical negligence…that’s what you do when you go to court, you claim that someone harmed you.

    The doctors in the John Ritter case were NOT found innocent, they were found not guilty…there’s a difference. Saying someone is found innocent means there was evidence proving that they did not do something. Saying they’re not guilty just means that there wasn’t enough evidence to prove that they were innocent, so they were found not guilty. So, the doctors that were found not guilty very well could have played a part in the negligent death of John Ritter. The Ritter family settled with the hospital.

    Why would I mention that his widow married the lawyer? What does that have to do with this topic?

  95. You claim medical negligence on the part of your doctors, yet the courts have not yet ruled in the case. I am surprised your lawyers are allowing this.

    You cite the John Ritter case fail to mention that Ritter’s doctor and radiologist were found innocent.


    The settlement you mention was between the hospital and the Ritter estate and has been described “as a business decision in the face of potentially huge damage award” on the part of the defendants, given the possibility that a jury would award a potential blockbuster award to “those it held responsible for killing one of America’s most beloved comic actors”

    You also fail to note that Mr. Ritter’s grieving widow recently married the attorney who represented her, a fitting Hollywood ending


    Comment edited on request of Rockville – lawyers rep. with doctors / JI

  96. Suspicionless drug testing in general is corporate welfare. Follow the money. The topic of my 1998 grad thesis, http://www.bgladd.com/drugwar. Nothing much has changed. Though, pretty soon we’ll probably have in situ wearable monitoring for drug and alcohol use. Sort of an electronic ankle bracelet for bioassay. I’d be shorting piss lab stocks.

    Welcome to the Panopticon.

  97. This is why movements like this exist “Taking Back Medicine” . One of the points made here is that there are 38 government agencies that can fine or shut down a medical practice today, it was only 4 for years so there’s a good hint as to what happening out there. You have the press constantly bashing doctors as well as they look for OMG headlines to get more clicks for ad revenue as well and they know how to work that. News agencies need money now as well and thus there’s part of what we see in the news today too and some like Forbes pay their contributors by the clicks, so we end up with click bait.

    Anyway good series of videos here that also address Maintenance of Certification. I actually did write to the Consumer Watchdog who is behind this bill and somewhat suggested they might want to ease up on this and pointed out the other side of what’s happening with doctors today too, but in one ear and out the other. The consumer watchdog has a good past in standing up for consumers, but they went off a little too far I feel on this side as I don’t think they understand what’s going with doctors today.


  98. Wow…do you hear black helicopters swarming around your house as well? Such paranoia!

    You’ve clearly fallen for the medical and insurance industry’s propaganda, hook, line and sinker. You spout their verbiage almost verbatim. Did you even bother to look any of this up and fact check before you decided to write this article?

    “Conspiratorial planning????” Where was the conspiracy? I’ve been a part of this campaign for close to two years, ever since my disabled sister died a horrific death from medical negligence, and I’ve publicly known about all this the whole time. There are articles on the internet about its planning. In order for it to be a “conspiracy,” it all would have had to have been done in secret! So ask again, are those black helicopters getting nearer?

    “Opaquely worded?” Do you need glasses? It’s one of the shortest and easiest to read pieces of legislation I’ve ever read! It clearly delineates EXACTLY what its intent is. And you bet it’s going to give the voting public a hand in making California safe. We will all be patients at some point and subject to the upwards of 440,000 deaths from medical error that occur each and every year! YOU BET we’re all going to change this despicable law. If I had my way, we’d ban it all together like 13 other states have done who have found their tort reform to be unconstitutional. 22 states in all have no medical tort reform at all!

    Did you realize that Jerry Brown has come out in recent years and admitted that MICRA never worked and that it has done more harm than good? Did you realize that MICRA’s original author, Senator Barry Keene has agreed that the cap needs to be raised to match 39 years of inflation? No? You didn’t research that? Well here, let me show you what they said: http://goo.gl/ifn4Vx

    You’ve clearly never read the true history of MICRA…how ONE insurance company started the whole ball rolling. Argonaut Insurance, who had done poorly in the stock market, started it all because they needed to recoup their losses. So they created a medical malpractice insurance scare, other insurance companies jumped on the bandwagon and the doctors and legislators fell for it. http://goo.gl/Zyan5j 11 years after MICRA passed, doctors insurance rates were still high…it didn’t do its job. http://goo.gl/X1Ugrh The market did NOT stabilize and in fact, our insurance commissioner used Prop 103, not MICRA, in 2012 to lower doctors malpractice insurance rates over $50 million. If the market had stabilized with MICRA, that would have been unnecessary.

    To this day, California doctor’s rates are astronomical, mostly due to insurance companies like The Doctors Company, which is actually created by and run by doctors! They screw themselves!

    To prove that you fall for propaganda easily, let’s take your statement about doctors choosing to close their practices and leave the state. This is virtually untrue. In 1977, the New York Times ran an article proving that 5/10 of 1% of the doctors in the state actually left. http://goo.gl/wGyWcJ

    You fail to mention when you say, “billions in health care savings from lower professional liability costs were passed through to California’s patients,” that it also started a downward spiral of patients who had been harmed or killed by medical negligence becoming incapable of getting to court to hold their dastardly doctors accountable http://www.dastardlydoctors.tumblr.com

    Gosh, I had not heard that story about Paul Phinney’s neighbors receiving postcards that implied he was a drug dealer! I saw the cards but never once thought it implied that HE himself was a drug dealer. It clearly shows that he opposes drug testing of doctors in the midst of articles about doctors dealing drugs illegally. So again, I think it’s your paranoia talking here that led you to believe that it was Dr. Phinney dealing drugs. Or do you know something we don’t?

    All ballot measures are underwritten by someone! Do you think we as victims of medical negligence, who can’t get to court due to MICRA, have that kind of cash laying around? I’m very thankful that someone came up with the cash to bring this ballot measure to the people and patients of California.

    “Cleverly disguised, and cynically camouflaged?” You’re really going overboard with the hyperbole. I note that you say these things but provide no proof of how that was done. Probably because it wasn’t disguised or camouflaged. Again, it’s all right in the ballot measure, very easy to read…completely intact and out in the open. You’re just banking on readers not doing any research of their own and taking your word for it!

    You’re also incorrect in your description of the ballot measure. It does NOT call for “mandatory physician drug screening OR mandatory uploading of the narcotic prescription history of every patient to an online database. Did you bother to read the ballot measure or was it too “camouflaged” for you to understand?

    The ballot measure calls for:

    1. Raising the MICRA cap to match the 39 years of inflation that have gone by without it also being raised.

    2. Calls for RANDOM drug testing of doctors IN HOSPITALS…not all doctors.

    3. Forces doctors and pharmacists to use the already-in-place and working CURES database when prescribing SCHEDULE II and III NARCOTICS to NEW patients, not all drugs to all patients.

    I mean come on, if you can’t even get that right, why should anyone believe anything you wrote in this article??? You’re clearly trying to mislead your readers.

    This IS a single subject: Patient Safety. The ballot measure just has three components to accomplish that, not unlike a chocolate birthday cake is one cake, but has many ingredients. At least that’s my take on it.

    Drug testing of doctors has HARDLY been silent until the ballot measure! Here’s Dr. Arthur Caplan talking about it on Medscape back in August 2013: http://www.medscape.com/viewarticle/808385. Here’s an article from Johns Hopkins from May 2013 “All hospitals should require drug, alcohol tests for physicians.” The Bangor Daily News wrote about it in November 2012.: http://goo.gl/XyxQjo Here’s an article from ABC News “Urine Drug Tests for Doctors?” from November 2008. http://abcnews.go.com/Health/PainManagement/story?id=6232694

    Guess you’ve been hibernating since 2008.

    When you all started running out of ammunition to shoot the ballot measure down, someone over there came up with this “privacy” baloney. Now that’s something that came out of nowhere! The CURES database has been in existence since the late 90’s. Where were all the accusations about “privacy in the almost 20 years between its creation and the time that y’all came up with it as a problem with the ballot measure???? Hmmmmmmmm???

    The CURES database has an extremely strong security system built into it and has NEVER BEEN BREACHED. Further, why would anyone want it? Do you even know what information is kept in the database? Simply, it’s the patient, doctor and pharmacy names, and the prescription name and dosage. There’s no contact information, no financial information, no medical history information….why would anyone want that? Do you really want to know what medications my neighbor is taking?

    Further, the database strictly follows HIPAA guidelines.

    Apparently you don’t know the definition of the word “sweetener.” A sweetener is a good thing! When an employer is courting a potential employee that they want, they often add “sweeteners” to their deal to get them to join their company. A hospital could give a doctor all kinds of “sweeteners” to get them to join their hospital team….are you complaining about those sweeteners as well? Or the ones that the drug companies kick back to doctors? Or are those “sweeteners” okay? Jamie Court was talking about sweetening the pot for voters, to give them an even better ballot proposition leading to patient safety. But leave it to the medical and insurance industries to turn a good thing into dirty politics.

    Victims of medical negligence are hardly “special interests.” There are thousands and thousands of us that have been harmed since MICRA was passed and have been incapable of getting to court to hold these negligent doctors and hospitals accountable for their actions. We’re not special interests, we’re everyday Californians like everyone else. Rest assured you’d take a very different tune if you or a loved one had been harmed or killed by medical negligence and you couldn’t get to court either.

    While trial attorneys will make more money when Prop 46 passes, their take is still going to be capped on a sliding scale, just as it is now. The higher a jury verdict, the more of that verdict will go to the VICTIM, not the lawyer, due to the sliding scale. http://goo.gl/4Hx9gW

    The Legislative Analyst’s Office recently rescinded their original report on the financial effects of Prop 46 and came out with a new one that basically states:

    “The amount of annual savings is highly uncertain, but potentially SIGNIFICANT. These savings would OFFSET to some extent the increased governmental costs from raising the cap on non-economic damages.” http://goo.gl/gWijBF

    A portion of the US Government tried to pass a national tort reform law a few years back based on California’s MICRA law….it was defeated…thank God. So you bet we’re all going to try and get rid of medical tort reform in every state becuase it takes away every citizen’s constitutional right to a jury trial and the ability to hold the doctors and hospitals that harm them, accountable.

    THAT’S why doctors, hospitals and insurance companies are against Prop 46, because they won’t have that safe haven any longer, protecting them from accountability. Doctors won’t be able to use their patient’s drugs to shoot up (http://goo.gl/lyQxRT), won’t be able to give a mother an infection that takes away all her arms and legs (http://goo.gl/bbz0Lq), won’t be able to illegally prescribe drugs to abusers and kill them (http://goo.gl/ThO8Hb).

    My disabled sister died of medical negligence (www.38istoolate.com/cali-andrist) in the same hospital where our mother died from hospital acquired sepsis, just three months after actor John Ritter died there and his family sued/settled for millions of dollars. Just recently I met actress Alicia Cole who went to this very same hospital and got the “flesh eating disease” there and almost died (https://www.youtube.com/watch?v=67vDXQMxUz4).

    How many of you readers want to end up in a hospital with that kind of track record? Unless we do something about it, 1000 people will continue to die every day from medical negligence and errors.

    THAT’S WHY we’re passing Prop 46…for all Californian patients. Not to make lawyers rich.

  99. In theory, I am of mixed minds about the testing of health professionals (as most reasonable people would be, even s lot of doctors I know, hence the inclusion); but this combination is toxic, nice folks, lawyers

    If you want this, fine. But let’s have economic awards in cases where frivolous cases are filed (hey, there are no frivolous casew, so this shouldn’t be much of a threat, right) and lets have a public reporting database where the public and juries can look up the records of your law firms and the expert witnesses and give juries ipads so they can look them up