Analysis: The Other Side of the Story on Prop. 46

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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

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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22 thoughts on “Analysis: The Other Side of the Story on Prop. 46”

  1. Tia Will

    My view of any bill is based on three assessments. For Prop 46 I would like to take these one at a time.

    1. Is change in the current law needed ?

    2. Is the bill effective in making the needed change ?

    3. Does the good done by the bill outweigh the inevitable downsides.

     

    1. NEED FOR CHANGE

    Change is definitely needed. We should be actively attempting to decrease medical errors, including those caused by alcohol and drug impaired health care workers. We should be making efforts to stop the over prescription of opiate pain medications while preserving the ability of patients who have legitimate need to receive their pain medication in a timely fashion. We should be ensuring that those who are in need of financial support after any kind of medical poor outcome, whether based on malpractice or just lack of success of the procedure.

    2. EFFECTIVENESS OF PROPOSITION

    Prop 46 fails on all three of its proposed changes

    – Drug testing. I could fully support drug testing that truly protected patients. So when would this need to occur ? Prior to the beginning of a shift, not once someone says they “suspect” a doctor of being impaired ( by which time she already will have been presumably treating patients in order to have been observed doing so) and not randomly ( left open for interpretation by the individual hospital) and not indiscriminately ( why should this apply only to hospital workers when the vastmajority,> 90 % of care is provided in the outpatient setting. This portion of the bill is truly as noted by David capricious, and in my opinion ineffective, discriminatory and onerous to the majority of doctors who are not working drug and alcohol impaired.

    – CURES database – I would fully support a measure that enforces in a timely fashion the mandate to check for opiates before prescribing. This proposition fails on two counts. The CURES database currently available in California is not even close to having the capacity for real time prescription checking. This in and of itself is unacceptable. Within Kaiser for at least the past five and probably 10 years, I have had the ability to check all my patients medications ( not just opiates but also for drug-drug incompatibility) with a single click on the tab marked “meds”. If California had a similar system, I would be supporting this portion of the measure. It does not, and the indications are that it will not within the specified time frame. What will this cost patients?  Let’s say that you came in to my office for a biopsy which usually requires oral medication or at most Motrin, but you have a lot of pain…..so much so that I want to prescribe 5 opiate based tablets for you to get you through the afternoon and night.  Ooops….it appears that the CURES database is down again.  I’m sorry, but no prescription for you. Or let’s suppose that your child has had a surgery and is ready for discharge from the hospital and needs pain meds. Database down ? Sorry, my hands are tied. This is not a lack of need, this is extremely poor writing of the law with failure to make exception for physician judgement in obviously innocent scenarios.  It is not doctors who will suffer from this poor piece of writing, but patients.

    – Raising the cap on pain and suffering is effective in the limited circumstances in which a person disabled by actual medical negligence, however, it does nothing to help those who have as much, if not more need, but whose attorneys fail to make a strong enough case.  For those of you who are old enough to remember, this portion of the bill reminds me of the television program “Queen for a Day”. The premise was that five women, all of whom were in desperate financial circumstances, went on TV, told their stories ( of disabled husbands, dying children, loss of limbs…..) and the one found most sympathetic got the prize. Pathetic then, and pathetic and ineffective in our current version of “convince the jury, or judge, or arbiter” of just how egregiously you were treated so that you can get what you need !

    The majority of medical incapacitation is not due to medical negligence or malfeasance, but rather due to our inability to always achieve the best possible outcome. In my opinion the failure here is not that the bill is too onerous for physicians as some are arguing, but rather that it does not go far enough to help those in real need. Need is not based on whether a disability is or is not based on negligence, but rather on the existence of that disability for whatever reason. I believe that there is a much more humane and much more “fair” means to take care of those in need and that is to do so for all, regardless of proven physician “fault”.

    3. GOOD vs BAD

    _ The random and capricious nature of the mandated drug testing along with the provision for suspension of license prior to investigation ( thus potentially limiting the employment of a completely innocent doctor for the remainder of her career) will cause more harm than any hit and miss random catch of an inebriated or drug using doctor.

    – Doubtful prevention of opiate related deaths by limiting even clearly needed prescriptions will harm patients, not doctors. If and when we have a fully functional drug monitoring system statewide, I would be completely willing to back such a measure. That time is not now.

    – Raising the cap on pain and suffering is in itself a reasonable proposition, however, it does not address the issue for the majority of people who need care and support, and hinges this aide on the performance of an attorney rather than on the basis of patient need. As such, it does not go nearly far enough, to the detriment of many.

    So as many have said, when you are critical of proposed changes, what would you propose as the alternative.

    1. Universal screening for hospital physicians at the time start of a shift with the potential for spot checks while on active duty to prevent usage after the start of the shift. A similar check for clinic physicians. Standardized rules for when hospitals could, and could not check. For example, no checking at a time when a doctor is on campus for other than patient related care.

    2. No suspension of license prior to investigation.

    3. Outside prescription checking for opiates ( and other medications) only once there is a fully functional statewide system. This should not be so difficult. I have had access to just such a system for the past approximately 10 years.

    4. Decouple need of the disabled patient from culpability on the part of the physician. Need is need and should not be tied to some one else’s negligence or the ability of a lawyer to convince a jury. We should be compassionate as a society whether or not someone else performed sub-optimally.

     

     

  2. PhilColeman

    “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.”

    The proposition will likely fail, probably decisively. But, yes, the proposition has brought to public attention crucial issues in the medical/legal field.

    Attorneys asking the general public for more money–in any circumstance–is not going to happen. John Grisham, take a bow. Tort attorneys are the evil empire. There would be public support for reasonable awards to attorneys for medical malpractice suits, but it would be less than 40-percent, or more, that is the standard award now.  Of course, “reasonable” is the ultimate wiggle-word here.

    Drug testing for doctors. First, a disclosure of my bias. My daughter is a physician and I tease her that she may have to “clean-up.” This to a lady who is the most disciplined monitor of everything she puts into her body of any human I’ve ever seen. Every physician I know seems to conceptually agree that a public perception of doctors taking periodic drug tests would enhance the image of the profession. Suggestion to doctors: Get in front of this and initiate your own legislation to test yourselves. It would great enhance your public image, and take a remove a ploy and distractor from those evil tort attorneys.

     

  3. Tia Will

    Phil

    Get in front of this and initiate your own legislation to test yourselves. It would great enhance your public image.”

    I could not agree more.
    And maybe we could come up with some sensible and workable initiative to prevent over prescription of opiates while we are at it. On a completely separate bill of course since bills should not be built with many clauses hoping to sneak through the bad with the good.

    1. SODA

      Am sure Tia agrees and has stated that what would be more effective would be an electronic database which would give the opiate (and other) prescription data to prescribing physicians (and dispensing pharmacists). Kaiser’s system is great and unfortunately still considered progressive as the rest of the health care system has not matched up. I realize Kaiser is a closed system and so is ‘easier’ however that is what we should be working for, in order to protect patients and also prevent abuse.

      1. Tia Will

        SODA

        Agreed. And actually such a system is in the works although not yet comprehensive. It is called “Care Everywhere”.

        What it allows for is the, post permission from the patient, linkage of medical records from all participating providers. For example if  I need to see the prescriptions, lab, pathology or radiology reports or notes from an outside system or physician, I obtain the consent of the patient and click on the “Outside Records” tab which takes me directly to Care Everywhere from which I can directly see on my screen the records from the participating systems which at present include Kaiser, UCDMC, Sutter and some other participating groups. This is a large step forward, but is not yet universal.

  4. DavisBurns

    If we vote for the proposition because we support increased limits for pain and suffering, does it get challenged in the courts as a matter of course because of the drug testing?  Rarely is there a well written clean proposition; legislation by proposition is a poor way to govern.

  5. Rich RifkinWDE 73

    The $250,000 cap is essentially for “pain and suffering.” It does not limit the direct economic damages. So if someone is hurt by a doctor’s mistake and can no longer work, all of the future income he would have likely made will be paid. Additionally, the noneconomic cap does not affect punitive damages. So if a jury finds that the malpractice was egregious, punitive damages on top of the economic damages can also be awarded.

    The main problem, of course, is that our malpractice tort system does not really punish bad decisions by doctors. It directly punishes bad outcomes. And they are far from the same thing. If a child is born with a deformity or other defect, trial lawyers will sue the obstetrician, even if her practice was completely standard. And if the child looks defective to the jury, they almost always punish the doctor.

    A much better system is what they have in France. As I understand it, each case of alleged malpractice is put before a panel of independent academic physicians, who review the case to decide if the doctor’s actions were standard or not. If the doctor did what he was supposed to do, but the outcome still came out badly, it cannot go forward as a malpractice case. In cases where the doctor truly caused the problem, due to an error or the use of a nonstandard form of care, he will be punished in a number of ways, including possibly losing his license to perform medicine and financial penalties. The victim in such cases will also be rewarded, as determined by a special court, not a jury. As a consequence, under the French system, doctors are not punished simply for bad outcomes, but for bad practices, and this results in better medical care.

    For my views on Prop 46, see: http://www.davisenterprise.com/forum/opinion-columns/prop-46-its-a-money-grab-by-the-trial-lawyers/

    1. Rich RifkinWDE 73

      “The main problem, of course, is that our malpractice tort system does not really punish bad decisions by doctors. It directly punishes bad outcomes.”

      No one knows this better than former senator and former VP candidate John Edwards. He won more than $30 million for himself suing doctors who delivered babies born with cerebral palsy. In not one of those cases was the child’s defect due to the obstetrician. But Edwards was a great sweet talker, who successfully got juries to feel sympathy for families whose babies had a severe birth defect.

      What even the avid defenders of the trial lawyers, people like David Greenwald, will never claim, because there is no evidence for it, is that lawsuits like those won by John Edwards and his ilk result in better medical practice. In fact, one bad consequence of these suits is the huge rise in Cesarean-section births, now about 1/3rd of all American babies. The medically ideal C-section rate is about 5-10%. Some of the overage in the U.S. is due to lifestyle choices of mothers, who don’t want to go through a vaginal birth. But most of it is due to defensive medicine which is caused by malpractice suits. Where the difference can really be seen in the U.S. is among the states. Those which greatly reward lawyers like Edwards have very high C-section birth rates, and states which cap damages have lower rates.

      The Ten States in 2010 with the Most Cesareans have the highest malpractice insurance rates for obstetricians:

      1. Louisiana     39.7 percent
      2. New Jersey     38.4 percent
      3. Florida     37.8 percent
      4. Mississippi     37.0 percent
      5. West Virginia     36.0 percent
      6. Kentucky     35.4 percent
      7. Alabama     35.3 percent
      8. Connecticut     35.1 percent
      9. Texas     35.1 percent
      10. South Carolina     35.0 percent

    2. Davis Progressive

      “It does not limit the direct economic damages. So if someone is hurt by a doctor’s mistake and can no longer work, all of the future income he would have likely made will be paid.”

      which means, if you’re poor, uneducated, a woman, or elderly you’re getting relatively little even for very egregious misconduct, it’s a classist view – did you even read the core article here, it laid out the problem and inherently classist nature of the cap?

      1. Rich RifkinWDE 73

        Davis Prog: which means, if you’re poor, uneducated, a woman, or elderly you’re getting relatively little even for very egregious misconduct, it’s a classist view.

        A rich white privileged attorney is lecturing on classism? Hah!

        Sadly, you put out your typical false statements to try to prove your point of view. Try to stick to the facts or reasonable logic.

        It is true that if you’re poor and there is no reason to expect you would have a higher future income, your economic damages are not much compared with the average person. But even this is not universally true. For example, a college student, who is poor and has no income, would still qualify for substantial economic damages based on the prospects of his future income potential. Economic damages are not based solely on what someone has made in the recent past.

        Where you are egregiously wrong is to lump in women and the elderly with “the poor.” Never mind that those age 65 and over are the wealthiest group of Americans by age. (See: http://www.census.gov/people/wealth/files/Wealth%20distribution%202000%20to%202011.pdf) There is no discrimination against women who win economic damages in a malpractice claim. Some women have very high income potential. Most are in the middle. And some, yes, are poor and have no skills to earn much more in the future. Yet reading what you wrote would make one think that a Meg Whitman or some other female corporate executive or Dr. Tia Will is poor by dint of being a woman. What a sexist point of view, considering you are a rich, white male lawyer, who is looking out for his own best interests here.

        1. Davis Progressive

          first of all, as a government lawyer, i’m not rich.  i’m not poor, but i’m not rich.  second, i specifically did not mention a college student, instead i spoke of poor, uneducated, female and elderly.

          so you take exception to me citing women, despite both articles written by specialists specifically cited women.  you failed to acknowledge this and failed to provide evidence to support your position other than the census.

          so why then do the stanford lawyers cite women specifically in their fourth point: ““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.””  I guess they’re sexist too despite the fact that two are women.  the professor in the huffington post cited women as well and she must be sexist as well.

          so why women, well we get the explanation in the link that david cited:

          In her paper, “The Hidden Victims of Tort Reform: Women, Children and the Elderly,” University of Buffalo Professor Lucinda Finley, who studied jury awards, noted,

          [C]ertain injuries that happen primarily to women are compensated predominantly or almost exclusively through non-economic loss damages. These injuries include sexual or reproductive harm, pregnancy loss, and sexual assault injuries…[J]uries consistently award women more in non-economic loss damages than men… [A]ny cap on noneconomic loss damages will deprive women of a much greater proportion and amount of a jury award than men. Noneconomic loss damage caps therefore amount to a form of discrimination against women and contribute to unequal access to justice or fair compensation for women.

          so rich,[edited] you don’t know half of what you think you know.

           

           

        2. Rich RifkinWDE 73

          “if you’re poor, uneducated, a woman, or elderly”

          In case you don’t understand what YOU wrote, Mr. Attorney, it includes anyone who is poor, uneducated, a woman or elderly. It does not suggest you have to be all of those at once. In fact, claiming that now makes no sense, because poor alone would handle it.

          I should add that because our malpractice tort system makes medical care for everyone much more expensive, but not better, and in some respects worse, it disproportionately harms poor people as a class.

          You make it seem as if, by standing up for your rich lawyer friends who sue doctors, you are standing up for all poor people. In fact, you’re doing just the opposite. You are favoring a system which, because of those lawsuits, makes good medical care unaffordable to many lower-income people, particularly those unfortunate enough to live in states with Republican governors who have rejected the provision within Obamacare that provides expanded Medicaid.

          http://familiesusa.org/blog/when-states-reject-the-medicaid-expansion-they-hurt-hospitals-too

        3. Davis Progressive

          a. you didn’t address the research cited in my post

          b. my lawyer friends are government attorneys, most of whom make about $80K give or take.  i don’t know any rich lawyers.

          c. the law continues the cap on attorney fees.

        4. South of Davis

          Rich wrote:

          > A rich white privileged attorney is lecturing on

          > classism? Hah!

          I have never heard anyone who was not rich white and privileged lecture anyone about “classism” (or anyone who was not a well educated classist self-identify as a “progressive”)…

          P.S. In my life I’ve noticed that the “rich” are always the people that make more than you…

          P.P.S. A VC friend with a high eight figure net worth once told me he wants to be “rich” some day (he then told me that to be rich you need to make enough to afford at least a 1/2 share in a NetJets GV)…

        5. South of Davis

          It looks like some attorneys make more than DP and would be excited to make 1/3 of $26mm (+ other fees) in a single case:
          “The jury awarded $25 million for future medical expenses and a life-care plan, $4 million for future lost wages, and $26 million for non-economic damages such as pain and suffering. Martinez and Fielding argued the hospital and its parent, Johns Hopkins Health System Corp., also named in the civil lawsuit, were negligent in their care for Fielding and the couple’s then-unborn son. They contend their child’s cerebral palsy and seizure disorder was caused by a loss of oxygen to the brain while Fielding waited for the Caesarean section.”

        1. WesC

          SOD……….   Clarification on the $30 million award in this case for lost wages and non-economic damages.  After the verdict the Hospital filed a motion for new trial, to alter or amend judgment, and for remittitur. After a two day hearing, the trial court denied the Hospital’s request for a new trial, and reduced the jury’s award for lost wages from $4 million to $2,621,825. The trial court further ruled that the Maryland cap on non-economic damages (“the Cap”) was constitutional, and reduced the jury’s $26 million award for non-economic damages to $680,000 in accordance with the Cap

  6. Davis Progressive

    tia: as i read the provision on testing, it doesn’t seem that onerous or unreasonable.  on the other hand, i am appalled that someone of your ilk and beliefs would shrug off the patent unfairness of economic damages versus pain and suffering.  the huffington post article illustrates the classist nature of that argument, i don’t see you in that light.

  7. Tia Will

    DP

      I have stated clearly that I do not believe that the raising the cap on pain and suffering addresses the real issue. That is not shrugging off the need for care for patients who sustain poor outcomes. It is stating that I believe that we should provide care for all patients who are no longer able to care for themselves regardless of whether or not a doctor made an error or was negligent. I would be much more generous, not less so, with care for those who are unable to care for themselves. If you have a question about my position, please ask it. Don’t tell me that I am “brushing something off” while obviously ignoring what I have written.

    I know that it is unpopular these days to be an unrepentant socialist.  But I am.  I do not feel that anyone should need a lawyer to “prove” that they are disabled if in fact they are. I believe that the disabled should all be cared for regardless of source of the disability and that doctors who need sanctioning should be sanctioned in much the way that Rich has suggested.

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