After 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.