I have some serious concerns about the required alcohol and drug testing of doctors – which seems to have been set up in a capricious manner. Critics charge that the required testing “was only added to this initiative to distract from the main purpose.”
On the other hand, Prop. 46 raises some critical issues. Currently the cap for pain and suffering in litigation is $250,000. Critics have charged that Prop. 46 is a grab-bag for personal injury attorneys, as the initiative will quadruple that figure. However, the legislature set the cap back in 1975 and has never adjusted it for inflation, which means that the cap when it was first set in 1975 was likely a higher level in constant inflation adjusted dollars than it is now. Proponents will point out that, while there is no cap to economic damages, the cap on non-economic damages, particularly pain and suffering, represents a fundamental point of discrimination for those most vulnerable individuals in society – low wage earners, women, children, people of color, etc.
For all of the talk that this is a grab-bag for the trial attorneys, interestingly enough, Prop. 46 would retain the current limit on attorneys’ fees in medical negligence cases.
Stanford Law Professors Nora Engstrom, Robert L. Rabin and Michelle M. Mello recently wrote an op-ed in the LA Times entitled, “What Prop. 46 Would Fix.”
They note, “Among other provisions, the measure would reset California’s cap on noneconomic damages recoverable in medical malpractice cases based on inflation, meaning that the $250,000 cap, imposed in 1975, would become a cap of $1.1 million. Rarely, if ever, has the commonplace idea of a regular inflation adjustment provoked such bitter controversy.”
They note, “Noneconomic damage caps — which restrict damages for pain, suffering and loss of enjoyment of life but not damages for lost wages, rehabilitation costs or medical bills — are admittedly complicated.”
They then proceed to clarify some of the issues involved.
First, they note that the opposition claims that indexing the damage cap for inflation would cost “California families $1,000 more each year.”
“That’s a big exaggeration,” they argue. They then cite the LAO: “California’s estimate, from the Legislative Analyst’s Office suggests the number is vastly lower. In 2013, healthcare spending in California was about $7,062 per person. The Legislative Analyst projects a 0.1% to 0.5% increase in such spending, which corresponds to between $28.25 and $141.23 a year for a family of four — and our estimate indicates the number is at the low end of that range.”
“Next, those who oppose 46 have asserted that the measure would lead doctors to ‘leave California altogether.’” The op-ed argues that “the evidence suggests otherwise.” They write, “Many respected researchers have probed the relationship between damage caps and physician supply. Of those, some have found no evidence that damage caps measurably increase physician supply. Others have found an effect, but a modest one. And these studies compare states with caps to states without caps; the effects found are probably larger than what occurs when a state just adjusts the cap amount.”
They conclude from this: “Indexing California’s damage cap for inflation is unlikely to jeopardize our physician supply.”
They then raise four key points.
First, “This damage cap singles out one category of injury victims — namely, medical malpractice victims — for inferior treatment. If you are injured by a defective product or by a careless motorist, California law entitles you to a full recovery. If you are injured by a negligent physician, on the other hand, your recovery may be partial and incomplete.”
Second, “Damage caps hit hardest those who are most seriously injured. Ordinarily, injured people are entitled to compensation commensurate with their suffering. Caps like California’s dictate otherwise. Patients with the most agonizing injuries, such as brain damage or permanent disfigurement, lose out more than those with lesser injuries. Raising the cap is progress toward reducing this inequity.”
Third, “It’s clear that damage caps influence the kinds of cases lawyers are willing to take — and not in ways most people think are desirable. Weeding out ‘frivolous lawsuits’ is a common goal of tort reform. But caps don’t do this. They simply make it harder for people who don’t have big economic losses, like lost wages, to access the civil justice system. This is because lawyers take medical malpractice cases on a contingency fee — typically one-third of the client’s recovery, paid only if the case is won. When a client’s recovery is reduced, the lawyer’s ability to make a living on the case is compromised — particularly because medical malpractice cases are hard to win and expensive to prepare (requiring extensive reliance on expert testimony). This means that lawyers will decline many meritorious cases in a severely capped environment.”
Fourth, “This lost access may particularly burden the disadvantaged — women, children, the elderly and the impoverished — who often lack high wages to recover as economic damages.”
This fourth point is illustrated in a Huffington Post op-ed from Joanne Doroshow from the Center for Justice and Democracy at New York Law School. In her piece, she writes that juries make the decision every day as to what compensation an individual should get for gross negligence. However, in some states, they cap compensation for these kinds of injuries, which are considered non-economic damages.
In states with caps, she argues that “politicians who have never heard a word about a case, seen a lick of evidence or have any idea about the depth of someone’s loss, have already decided what that damage is worth.”
She writes, “Half the states today have brutally-low ‘one-size-fits-all’ caps, or limits on compensation for injuries like this. A child who is blinded is treated like a senior citizen who has permanent pain due to negligent care or a mother who loses her son or daughter.”
She writes that those caps apply regardless of “how much merit a case has, or the extent of the misconduct by the hospital, or the severity of the injury or loss.”
She adds, “When a state ‘caps’ non-economic damages, politicians have essentially decided to value the destruction of someone’s life by what that person would have earned in the marketplace, since lost earnings are never ‘capped.’ This promotes a kind of caste system, which brands entire classes of low- or non-earners in our society — including children — as worth less than the life of a corporate executive.”
She concludes, “Laws that cap compensation for non-economic injuries treat women, children and seniors as second-class citizens in this country. The terrible injustices that caps create are a blemish on our entire justice system.”
Earlier this week, Tia Will shared her concerns about the requirement of alcohol and drug testing. I tend to agree with her on this point and it is unfortunate that this portion was stuck into the bill late, apparently in order to soften the view that the bill was aimed to benefit trial lawyers.
As described to me, however, I believe that portion is likely to be struck by the courts as unconstitutional.
Nevertheless, I think this proposition offers some badly needed corrections to the system. Whether people can support the measure, with the drug and alcohol testing, is up to the individual voter.
—David M. Greenwald reporting