It’s not even on the ballot yet, but rival forces are gathering – again — over a plan to lift the decades-old cap on pain and suffering damages in medical malpractice cases.
The proposal, aimed at the November ballot, also cracks down on drug- and alcohol-impaired physicians and seeks to curb over-prescribing of medications.
“There’s some high profile cases … of doctors who are drunk or high and cause damage,” said Jamie Court, president of Consumer Watchdog, an activist group financed in part by attorneys and the key backer of the proposed initiative.
“We combed through the medical board accusations against doctors and found one out of every five [accusations] deals with substance abuse either by a doctor or from a doctor over-prescribing,” he added.
Doctors don’t see it that way. And they believe the inclusion of drug testing in the initiative is a device to cover its real purpose — getting lawyers a fatter paycheck.
“We’re gearing up to prepare to fight that fight,” said Molly Weedn, a spokesperson for the California Medical Association.
At issue is the Medical Injury Compensation Reform Act, or MICRA, signed by Gov. Jerry Brown in 1975, to limit pain-and-suffering awards – non-economic damages – to $250,000 in medical malpractice cases. Economic damages, such as lost wages and future medical costs, are unlimited.
The proposed ballot initiative would tie the limit to inflation, which would raise the $250,000 limit lift it to about $1.1 million today, reflecting an inflationary increase of about 334 percent. In today’s dollars, the 1975 maximum of $250,000 would be worth about $57,400. To qualify the initiative, supporters need to submit 504,760 signatures of registered voters by March 24, according to the secretary of state’s office.
Brown signed the law amid complaints from doctors, surgeons, anesthesiologists and others in the medical community that their insurance premiums were spiraling out of control, in part because of what they described as excessive, high-dollar settlements in malpractice cases and frivolous lawsuits. Doctors at the time said they faced mounting pressure from medical malpractice related costs and were being driven out of the state, and hospitals said they were on the brink of closure.
“That’s just complete fiction,” says Court. “Malpractice costs overall are like a fraction of one percent of medical costs, they’re insignificant—that’s claims and premiums.”
Under the state’s business and professions code, lawyers working on a contingency basis may collect sliding-scale fees up to 40 percent of first $ 50,000, a third of the next $ 50,000, a fourth of the next $500,000 and 15 percent of damages $600,000.
There have been numerous, unsuccessful efforts to amend MICRA in the Legislature over the years, and the issue represents an enduring Capitol political battle between lawyers, doctors, insurers and others.
Bracing for a November ballot showdown, physicians and healthcare insurers and others have loaned nearly $32 million to the opposition committee, Patients, Providers and Healthcare Insurers to Protect Access and Contain Health Cost. Backers of the proposal reported about $400,000 on hand, according to the secretary of state.
Reaching a legislative compromise to amend MICRA is unlikely – at least so far. Negotiations piloted by state Senate Leader Darrell Steinberg, D-Sacramento, himself an attorney, have faltered between healthcare groups and consumer attorneys.
The constitutionality of California’s MICRA cap has been upheld in state courts, but in cases across the country judges have struck down similar laws. In 2012, the Missouri Supreme Court on a 4-to-3 decision overturned Missouri’s tort reform law as a violation of the state constitution’s right to trial by jury.
The $32 million in loans is viewed by supporters of the initiative as a scare tactic.
“I think it’s a way to try and deter people away from submitting signatures,” Court said. “But I’m sure they’ll come up with a lot of money.”
Eighteen percent of medically licensed physicians in California have substance abuse problems, according to a 2000 report by the California Medical Board, which regulates physicians in California.
For nearly 25 years the Medical Board’s Diversion Program provided confidential help to doctors with substance abuse problems, but the program ended in 2007.
“The public really doesn’t understand why doctors aren’t already drug tested,” Court said. Pilots, bus drivers and transportation workers are just a few professions that require drug testing to prevent putting the public at risk.
Weedn says the drug-related provisions apparently were included to gain support for the initiative, citing an interview with the LA Times in which Court was quoted as saying that “…the ultimate sweetener” for the proposal was adding the drug-testing language.
To improve its chances of passing, she contended, focus group testimony constructed the proposed ballot initiative rather than the opinions of medical professionals.
“We know this is really about the trial lawyers increasing the cap on MICRA, which you know would take money directly out of the healthcare system and put it into the pockets of trial attorneys,” she said.
The initiative also would also require doctors to consult the state’s prescription drug database before issuing substances to a patient.
Funding for that database, called the Controlled Substance Utilization Review and Evaluation System (CURES), was reeestablished last year by a bill authored by Sen. Mark DeSaulnier, D-Concord, by charging an annual $6 licensing fee on pharmaceutical prescribers.
Ed’s Note: Revises language in 21st-23rd grafs to clarify.