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Southwestern Law School

Friday, October 24, 2014

Eric Andrist: Pro-Prop 46



Proposition 46 on California’s November ballot takes three steps to improve patient safety. While the doctors, hospitals and medical malpractice insurance companies that have spent tens of millions of dollars to oppose this initiative love to say it’s about making more money for trial lawyers, what it’s really about is the safety of all of us who live here. Because any of us could be killed, maimed or disfigured by medical negligence. Any of us could be harmed by a doctor impaired by drugs or alcohol. Any of us could have our lives turned upside down by the actions of a doctor-shopping prescription drug addict who received too many pills from too many doctors.

Of course no one thinks it will happen to them. I didn’t think it would happen to me. Until it did.

Both my elderly mother and my mentally retarded sister died from medical negligence at the same prestigious Los Angeles hospital where actor John Ritter died and his family sued/settled for millions of dollars. Actress Alicia Cole also went to this hospital for a routine surgery and ended up contracting “Flesh Eating Disease” there and almost died.  After my sister’s horribly painful death, I turned to the legal system to hold those who treated her accountable and try to prevent other families from going through the same nightmare. You can see a bit about my sister’s story at

But attorney after attorney I approached told me they wouldn’t take the case, despite its merits. That’s because my sister, who was unable to work because of her disability, had no income. She never married and had no children. (I was her full-time caregiver.) And because she was dead, there were no ongoing medical bills to pay.

It wasn’t until I started trying to pursue justice in this case that I learned California has a law, enacted in 1975 and never changed since, that limits compensation for medical malpractice cases like hers to $250,000. And while that amount has been frozen for almost 40 years, the cost of taking a case to trial hasn’t – a good chunk of that cost being the enormous hourly fees paid to doctors as expert witnesses. So after the trial costs have been deducted from the $250,000, the victim’s attorney gets a percentage of the balance, a percentage that’s also limited on a sliding scale by state law. That amount is their compensation for what is often years of work on the case (these lawyers don’t receive hourly fees and don’t get a penny until their client wins an award).

Keep in mind the doctors and hospitals face no limits on what they can spend on their legal defense. In the face of that, most lawyers will look at the potential return on a case like mine where the damage award is capped and say it’s simply not worth it.

I don’t blame them. I blame the law that put them in that position in the first place.

Opponents of Proposition 46 are quick to point out that California does not limit compensation for economic damages such as lost wages and medical care. But what they refuse to acknowledge is there are cases like mine that don’t have economic damages – cases involving the deaths of the elderly, the disabled, children and others with no income. How do we get accountability in the face of that cap?

And the cap on noneconomic damages comes into play in other cases too. If you lose your limbs due to medical negligence, or wind up paralyzed, or lose the ability to have children, or suffer brain damage – just to name a few possible scenarios – your compensation for that harm is limited to $250,000 (or rather, what’s left of that after court costs and your attorney’s share). How does that seem fair?

This arbitrary cap leads to some strange situations in California. For instance, a highly-paid insurance company executive and an unemployed woman can suffer the exact same medical harm that keeps them from being able to work. But the executive can be compensated for his lost wages, in addition to “pain and suffering.” The unemployed woman had no wages to lose, and her only possible compensation is the “pain and suffering” damage that is capped under state law.

Or take this situation: because medical malpractice cases are the only ones in California in which damage awards are capped, if a doctor runs over and kills an unemployed husband and father, his family can be awarded whatever compensation a jury determines after hearing all the evidence presented by both sides. But if that same doctor killed that same man through medical malpractice, the family’s compensation is limited to $250,000, no matter what a jury decides (and the jury is never told about the MICRA cap).

Proposition 46 would simply update that $250,000 cap to take into account 39 years of inflation since it went into effect. In other words, the cap would now have the same economic value it did in 1975. How could this be even remotely controversial? If $250,000 was thought to be “fair” in 1975, why in the world would the equivalent amount not be considered “fair” today?

And yet the doctors, hospitals and insurance companies that were so delighted to win this $250,000 cap in 1975 would have you think the world would end if the cap were adjusted for inflation (to about $1.1 million today). They’ll tell you malpractice premiums will go through the roof and doctors will flee the state as a result.

But has this happened anywhere else? No.

In recent years, caps similar to California’s have been struck down by courts in three states: Illinois, Georgia (both in 2010) and Missouri (2012). Those caps weren’t just raised, as California’s would be, but eliminated completely. Did the sky fall? No. Malpractice premiums today are no higher in any of those states, and the number of doctors per capita has actually gone up.

Turns out the existence of the cap must not be a big factor in determining malpractice premiums, and it turns out malpractice premiums must not be a big factor in determining where doctors practice. Ten of the 13 states with the most doctors per capita have no caps on medical malpractice damage awards.

Opponents of Proposition 46 will point to states without caps where malpractice premiums are higher than California’s. (Ironically, one of them is Illinois, where premiums are actually slightly lower now without a cap than they were when the cap was in effect!)  I can point to states without caps where malpractice premiums are significantly lower than California’s. The truth is there is no correlation between the existence of a cap and premiums.

Opponents of Proposition 46 won’t point out that California is the only state where malpractice premiums are regulated by the state insurance commissioner, thus protecting doctors from unreasonable rate increases. In other states, insurers can charge whatever the market will bear. California’s two biggest malpractice insurers are between them sitting on (or rather, investing and profiting from) more than $2 billion in surplus cash, over and above what’s been spent on overhead and set aside to pay future claims. If they want to raise rates here, they’re going to have to justify why they need to do it with all that money sitting around, thanks to Prop 103 passed in 1988.

Updating the cap on malpractice damage awards will give medical practitioners an added financial incentive to avoid causing harm in the first place. That’s one of the three ways in which Proposition 46 will improve patient safety. Now let’s look at the other two.

DOCTOR DRUG TESTING: Others in positions that affect public safety – airline pilots, truck drivers, train engineers – are subject to random testing to ensure they aren’t impaired by drugs or alcohol. So are police officers and every soldier in the military, among many others. A lot of people are surprised to find out doctors, who literally hold our lives in their hands, aren’t. Proposition 46 requires the California Medical Board to suspend a doctor pending investigation of a positive test and to take disciplinary action if the doctor was impaired while on duty.

It’s hardly a radical idea: among those who have called for doctor drug testing are the inspector general of the U.S. Department of Health and Human Services, the director of medical ethics at New York University’s Langone Medical Center, and doctors at Johns Hopkins Medicine who wrote, “Alcohol and drugs impair performance and, directly or indirectly, increase risks for error. Although we do not know the extent to which preventable harm and physician drug and alcohol use overlap, given the prevalence of both, they likely do. These facts make for a compelling argument for physician drug testing.”

Not only will testing identify some doctors who show up to work impaired, it will serve as a deterrent to prevent drug and alcohol abuse by others.

USE OF A PRESCRIPTION DRUG DATABASE: Proposition 46 would not create a statewide database of narcotic drug prescriptions; that’s already in existence. But it would require doctors to actually check the database before prescribing potentially addictive narcotics to patients for the first time, to ensure those patients aren’t already receiving the medication they need. Abuse of prescription narcotics is the nation’s fastest growing drug epidemic, and checking this database will reduce the number of doctor-shopping addicts who harm themselves with overdoses or harm others, such as driving while impaired. In other states where use of such a database is required, they’ve seen notable reductions in doctor shopping and related law enforcement expenses.

It appalls me that malpractice insurance companies in California would rather spend tens of millions of dollars to fight Proposition 46 than use that money to compensate those who are harmed by malpractice. More attention to patient safety ought to lead to less medical harm. I think Proposition 46 will provide three good routes to improve safety for all of us in California.

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With regard to the "cap," please take note that... even if one believes that the cap is an effective means to keep scumbag lawyers on a leash while still fully compensating victims of hack doctors, the amount which our legislature thought to be the perfect amount was $250,000… in 1975… it is now 2014… inflation has reached us in every area… there should be no reasonable argument against the notion that a dollar is 1975 bought more than it does in 2014. An adjustment for inflation to 2014 values should be acceptable… even for those promoting the cap.

Another point to make 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 a medical malpractice attorney AND physician, I found it difficult to read most of the Internet posts on this topic due to the misinformation, the hatred toward lawyers, the dramatic boo hoo me posts from physicians, and such. It's really a very simple issue when boiled down. There are of course many great opinions posted, too bad they are often obscured by many over the top replies.

When I look into talking on a medical malpractice case, I know that 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).

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

Posted by: Paul J. Molinaro, M.D., J.D. | Oct 24, 2014 4:14:53 PM

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