Physicians

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.  

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EtAli.JrAnne KimRick Strand. FATHERRick StrandDoccon54 Recent comment authors
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Anne Kim
Guest

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

@BobbyGvegas
Guest

Re-positioning this old post is a transparent click-bait ploy timed to election day.

Rick Strand
Guest

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… Read more »

@BobbyGvegas
Guest

No on 46. That was my mailed-in vote.

Rick Strand. FATHER
Guest

That’s how it goes. My best!

Paul J. Molinaro, M.D., J.D.
Guest

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… Read more »

Doccon54
Guest
Doccon54

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!!!

Doccon54
Guest
Doccon54

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!!

@BobbyGvegas
Guest

“ambulance-chasing hack that you are”

Copy that.

matt
Guest
platmum
Guest
platmum

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.

just another dr
Guest
just another dr

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!” http://www.aboutlawsuits.com/unneeded-tests-not-due-lawsuits-48389/ 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… Read more »

Perry
Guest
Perry

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.

Kerry Pay
Guest
Kerry Pay

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… Read more »

Joe
Guest
Joe

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… Read more »

Eric Andrist
Guest

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… Read more »

Just-A-Physician
Guest
Just-A-Physician

Opponents to Proposition 46 have posted a video on YouTube that addresses many of the comments above:

http://youtu.be/nqyIP9NaLYg

Eric Andrist
Guest

And here’s my video debunking it all. http://youtu.be/dvZqXAsj7jY

@bobbyGvegas
Guest

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?

@BobbyGvegas
Guest

@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.

Eric Andrist
Guest

Glad I amuse you.

Why in the world would the average person know what the JCAHO is????

Talos
Guest
Talos

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.

Eric Andrist
Guest

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.

@BobbyGvegas
Guest

Now, THERE’S science for ya.

Eric Andrist
Guest

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.

@BobbyGvegas
Guest

Cute.

@BobbyGvegas
Guest

Talos, I found Eric’s YouTube video: http://www.youtube.com/watch?v=zKhEw7nD9C4

Can you see Eric as a Dashing Trial Lawyer?

“In summation. Empirically shmempiracally, your Honor…”

Eric Andrist
Guest

Thankfully we don’t live our daily lives in a court of law.

And Bobby, I found your YouTube video as well! https://www.youtube.com/watch?v=CuWhgyGWkgE

@BobbyGvegas
Guest

Cute. You who were not gonna engage me anymore.

Here’s one of my ACTUAL YouTube videos:

https://www.youtube.com/watch?v=gR-w9LLpieM

Perry
Guest
Perry

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

@BobbyGvegas
Guest

In situ wearable bioassay. It’s coming.

Eric Andrist
Guest

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… Read more »

@BobbyGvegas
Guest

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.

Eric Andrist
Guest

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.

@BobbyGvegas
Guest

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.

Eric Andrist
Guest

Pot…kettle…black.

Talos
Guest
Talos

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… Read more »

Eric Andrist
Guest

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… Read more »

Talos
Guest
Talos

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… Read more »

Eric Andrist
Guest

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… Read more »

Talos
Guest
Talos

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… Read more »

Eric Andrist
Guest

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.… Read more »

Talos
Guest
Talos

“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… Read more »

Eric Andrist
Guest

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… Read more »

Talos
Guest
Talos

“…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… Read more »

Perry
Guest
Perry

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,… Read more »

Eric Andrist
Guest

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.