By Emily Largent
California Proposition 46, the Medical Malpractice Lawsuits Cap and Drug Testing Doctors Initiative, is on the November 4, 2014 ballot. If approved by voters, the initiative would: increase the state’s cap on non-economic damages that can be assessed in medical negligence lawsuits; require hospitals to test certain physicians for drugs and alcohol; and require healthcare providers to check a statewide prescription drug database before prescribing or dispensing certain drugs to a patient for the first time.
The debate over Proposition 46 has been framed as a battle between doctors and lawyers. See also here or here. It’s not hard to see why. Attorneys have contributed the vast majority of the “yes” campaign‘s $9 million fund. By contrast, nearly three-fourths of the “no” campaign‘s $57 million has come from six insurance companies; other big backers include the state medical and dental associations. (It is the most expensive campaign in California this year.) While the two sides have made a variety of arguments for and against Proposition 46’s various provisions, I want to focus on the putative costs and cost-savings:
First, Proposition 46 would increase California’s current $250,000 limit on non-economic awards (which dates to the Medical Injury Compensation Reform Act of 1975) to $1.1 million, and provide for annual adjustment for inflation going forward. The non-partisan Legislative Analyst’s Office estimates that increased state and local government health care costs from raising the cap likely range from the tens of millions of dollars to several hundred million dollars annually. On the other hand, a RAND study of EDs in three states with strict malpractice limits found the caps had little effect on the cost of care.
Second, the California Department of Justice already has a prescription drug monitoring program system which allows registered users, including licensed prescribers, to access information on a patient’s controlled substance history. Proposition 46 would make it mandatory for doctors to consult the database, and California would become one of only nine states to require doctors to check before prescribing painkillers to first-time patients. The Legislative Analyst’s Office said that the savings from proscription drug monitoring were “uncertain, but potentially significant.” Use of the database could result in savings by reducing the amount of drugs prescribed and/or reducing costs associated with drug treatment, rehab, and law enforcement.
Third, Proposition 46 would require drug and alcohol testing of doctors and reporting of positive tests to the California Medical Board. It would give the state Medical Board one year to set up a system to test doctors–both randomly and within 12 hours after an unexpected patient death or serious injury. Because there is no other drug-testing law in the country, it’s unclear that such a policy would decrease costs.
Early polls showed strong support for the measures, but that support is rapidly waning. How would you vote?
It’s not trial lawyers vs. doctors; it’s the harmed public vs negligent medical professionals and their big profit malpractice insurance companies.
The effects of the 1975 MICRA law have now made the value of your family members with no job income(children, retirees, ect) essentially worthless as you can not obtain a lawyer in any wrongful death malpractice case.
Hundreds of thousands of Americans die yearly as the result of preventable medical negligence. Common hospital malpractice errors include: incorrect medication/dosage, surgical mistakes, preventable infections, diagnosis failures, birth delivery mistakes, anesthesia errors and under/over treatment.
All Californian families are now denied any justice and accountability when a family member with no job income dies as a result of medical errors due to the 1975 MICRA law which malpractice insurance companies backed and that capped the non-economic “pain and suffering” award to 250K with no adjustment for inflation. Except in rare punitive damage cases this is the only award available.
Malpractice lawyers will not take these wrongful death cases because the MICRA law also limits the attorney award to about 30%(BPC 6146) or about $75K of any maximum $250K award and attorney and medical expert costs in a case quickly exceeds $75K, search on “caps harm California” and “protectconsumerjustice org how micra came to be”.
Governor Brown who signed MICRA into law said 17 years later that MICRA did not lower health care costs and only enriched insurers and placed negligent or incompetent physicians outside the reach of judicial accountability. Ralph Nader has reminded Governor Brown’s of this earlier statement and has asked him to support Prop 46.
The MICRA cap and low non-economic damage caps in many other states have enabled malpractice insurance companies to earn billions in profits by essentially eliminating their monetary liability in these cases. It’s no wonder malpractice insurance companies have spent tens of millions to defeat Prop 46 which doesn’t even eliminate the cap, only adjusts it for inflation.
California malpractice insurance companies profit an incredible 70 cents for every dollar collected in malpractice premiums which leaves plenty of room for an increase in malpractice payouts without a rate increase to doctors.
22 other states do not have a non-economic damage cap and medical insurance rates are not any higher in those states nor are there shortages of physicians.
Since 1988 Prop 103 has regulated doctors malpractice insurance premiums and can not be increased unless justified with the Insurance Commissioner.
California drivers do not have a law that eliminates their liability if they kill a person in a car accident and neither should negligent medical professionals and their insurance companies. When there isn’t accountability there isn’t a deterrent to avoid repeating negligence.
Prop 46 also includes testing doctors for drug and alcohol which is done in other occupations such as in the transportation industry. Certainly it is in the public’s interest for doctors to be thinking clearly when they have our lives in their hands.
Overprescribing of prescription narcotics is now a national epidemic. The Centers for Disease Control cited 475,000 emergency room visits and 36,000 deaths from prescription narcotic overdoses in a recent year, at a price tag of $72 billion in avoidable health care expenditures.
Prop 46 will also require physicians to check the state’s existing and secure DOJ CURES prescription drug database before prescribing narcotics and other addictive drugs to curb doctor-shopping drug abusers, to prevent over-dose deaths and to reduce harmful behavior and health care costs.
PLEASE VOTE YES ON PROPOSITION 46 for Public Safety and Patient Justice.