Nasty Little Pill Called Prop 46

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In just a few short weeks, we will be heading to our respective polling places and casting our ballots in the 2014 election. We have many choices to make, especially in our local Newport Beach City Council race and Measure Y.

However, there are other issues on the ballot, including one we should all be able to make with ease: voting NO on Proposition 46.

If passed, Proposition 46 would more than quadruple the cap on non-economic damages in California’s landmark Medical Injury Compensation Reform Act, known as MICRA. That would make it easier and more profitable to file medical lawsuits against doctors and hospitals – and raise health care costs for all of us.

The independent Legislative Analyst’s Office predicted that Proposition 46 would raise costs for state and local governments by up to “several hundred million dollars annually.”

Another analysis, looking at increased costs across the whole economy, estimated that health care costs in California will increase by $9.9 billion a year—about $1,000 per year for a family of four.

It is not surprising that groups like the Orange County Medical Association and the Southern California chapter of the American College of Surgeons have joined with dentists and hospitals to fight Prop 46.

What may surprise you is that they’re also joined by the Association of Orange County Deputy Sheriffs, ACLU of Southern California, SEIU, the CalChamber, and hundreds of other groups. The California Republican Party and even the Libertarian Party of California and the LA County Democrats agree that Prop 46 is a bad idea.

So why are we even being asked to vote on such a costly, ill-conceived measure?

It’s simple: the trial lawyers, the same ones behind abusive ADA and Prop 65 lawsuits, are trying to find another way to rig our civil justice system in search of profits.That’s why more than 97 percent of funding for Proposition 46 has come from trial lawyers and their allies.

As a retired doctor and supporter of California Citizens Against Lawsuit Abuse CACALA, I have seen this game played before. We have been on the front lines in the battle against this group of lawyers for years and we are appalled with their unabashed attempts to make our civil justice system serve their financial interests.

Prop 46 will create more incentives for lawsuit abuse and specifically benefits trial lawyers — more lawsuits for more money with trial lawyers getting a higher percentage of the legal jackpot take — at an enormous cost to the rest of us.

This cynical attempt to rig the justice system shows how much contempt these attorneys have for the rest of society.

I encourage you to vote NO on this nasty little pill titled Prop 46.

Dr. Michael Arnold Glueck of Newport Beach has written extensively on medical-legal and related issues.

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  1. The article’s author should realize that as a retiree his value is essentially zero if he should die from medical malpractice because of the MICRA law.

    The organizations mentioned opposing Prop 46 do not represent the opinions of their members only their leaders and their political agenda. And the arguments mentioned against Prop 46 are the same scare tactics from malpractice insurance companies funding the no on p46 campaign.

    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. Americans are prescribed twice the drugs as Europeans and we are not any healthier or live any longer for it(Vioxx caused 60K deaths).

    Prop 46 is not about trial lawyers vs doctors; it’s about patient and public safety at the expense of a modest reduction in profits to malpractice insurance companies that make billions. And P46 is about public justice which is currently being denied to you.

    In 1975 malpractice insurance companies backed the California MICRA law which capped the non-economic “pain and suffering” award to 250K with no adjustment for inflation and this unjust law has now reduced the value of your jobless family members(children, retirees, ect) to essentially zero as you can not obtain a lawyer in any wrongful death malpractice case for them. Except in a very rare punitive award this is the only award available.

    Malpractice attorneys 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 will quickly exceed $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. Erin Brockovich and patient safety organizations support P46.

    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.

    P46 will not cause healthcare costs to skyrocket. The nonpartisan Legislative Analyst’s Office calculates the increased cost at less than 0.5%. 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 jobless 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 the transportation industry, the military and in other public safety related occupations. Certainly it is in the public’s interest for doctors to be thinking clearly when they have our lives in their hands.

    Over prescribing 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.

  2. Prop 46 was created by a man named Bob Pack, whose children Troy and Alan Pack were killed by a convicted drugged driver. Mr. Pack also created the CURES system in CA, the prescription drug monitoring program where medications are logged and doctors can determine “doctor shoppers” and the DEA can determine if a doctor is “dirty” (prescribing pills for cash. Medical negligence is at an alltime high in this country. It has never been “easy” to sue a medical professional for negligence. Lawyers fees are capped, cases are dragged out, and the loser pays all. So if you lost your child to a “dirty doctor” or a negligent doctor or hospital, you are entitled to $250K IF you can find someone to take the case. Those that oppose, funded by medical professionals hospitals, and insurance companies put up $53 MILLION dollars to fight this. Where did those funds come from and shouldn’t they be worrying about patient safety. CEO’s of insurance companies walk away will millions in compensation packages and they throw their money at false advertising campaigns aimed at the consumers with threats of higher premiums. How do you know if your doctor is clean and sober? When they wheel you into the OR can you be sure your doctor’s not coming off a bender or popping pills which he has easy access to? Airline pilots, bus drivers, train operators and more all drug tests. The medical mafia polices itself and that’s not good enough anymore. It’s patient safety over profits. $53 million to fight this prop. Time to make some changes.

  3. 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 taking 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.