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California Increase in Cap on Medical Malpractice Lawsuits (2014)

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A California Increase in Cap on Medical Malpractice Lawsuits (#13-0016) has been approved for circulation in California as a contender for the November 4, 2014 ballot as an initiated state statute. Version 13-0011 failed to qualify for the ballot.

Supporters of Initiative #13-0016 reported submitting an estimated 830,000 signatures on March 24, 2014, versus a requirement of 504,760 valid signatures.[1]

If approved by voters, the initiative will:[2]

  • Increase the state's cap on damages that can be assessed in medical negligence lawsuits to over $1 million from the current cap of $250,000.
  • Require drug and alcohol testing of doctors and reporting of positive tests to the California Medical Board.
  • Require the California Medical Board to suspend doctors pending investigation of positive tests and take disciplinary action if the doctor was impaired while on duty.
  • Require health care practitioners to report any doctor suspected of drug or alcohol impairment or medical negligence.
  • Require health care practitioners to consult state prescription drug history database before prescribing certain controlled substances.

Supporters of the initiative refer to it as the Troy and Alana Pack Patient Safety Act of 2014, after two children who were killed after an individual under the influence of abused prescription drugs.[3]

The measure, if approved, would create the first law in the United States to require the random drug testing of physicians.[4]

Two versions of the initiative were submitted (#13-0011 and #13-0016).

Text of measure

Version 13-0016

Ballot title:

Drug and Alcohol Testing of Doctors. Medical Negligence Lawsuits. Initiative Statute.

Official summary:

"Requires drug and alcohol testing of doctors and reporting of positive test to the California Medical Board. Requires Board to suspend doctor pending investigation of positive test and take disciplinary action if doctor was impaired while on duty. Requires doctors to report any other doctor suspected of drug or alcohol impairment or medical negligence. Requires health care practitioners to consult state prescription drug history database before prescribing certain controlled substances. Increases $250,000 cap on pain and suffering damages in medical negligence lawsuits to account for inflation."

Fiscal impact statement:

(Note: The fiscal impact statement for a California ballot initiative authorized for circulation is jointly prepared by the state's Legislative Analyst and its Director of Finance.)

"State and local government costs associated with higher net medical malpractice costs, likely at least in the low tens of millions of dollars annually, potentially ranging to over one hundred million dollars annually. Potential net state and local government costs associated with changes in the amount and types of health care services that, while highly uncertain, potentially range from minor to hundreds of millions of dollars annually."

Version 13-0011

Ballot title:

Drug and Alcohol Testing of Doctors. Medical Negligence Lawsuits. Initiative Statute.

Official summary:

"Requires drug and alcohol testing of doctors and reporting of positive test to the California Medical Board. Requires Board to suspend doctor pending investigation of positive test and take disciplinary action if doctor was impaired while on duty. Requires health care practitioners to report any doctor suspected of drug or alcohol impairment or medical negligence. Requires health care practitioners to consult state prescription drug history database before prescribing certain controlled substances. Increases $250,000 cap on pain and suffering damages in medical negligence lawsuits to account for inflation."

Fiscal impact statement:

(Note: The fiscal impact statement for a California ballot initiative authorized for circulation is jointly prepared by the state's Legislative Analyst and its Director of Finance.)

"State and local government costs associated with higher medical malpractice costs, likely at least in the low tens of millions of dollars annually, potentially ranging to over one hundred million dollars annually. Potential state and local government costs associated with changes in the amount and types of health care services that, while highly uncertain, potentially range from relatively minor to hundreds of millions of dollars annually."

Controversy

The San Diego Union-Tribune argued that the first sentence of the ballot title - "Drug and alcohol testing of doctors." - was intentionally placed first by Attorney General Kamala Harris (D). The editorial board continued, "That’s right — Attorney General Kamala Harris intentionally deceived ballot signers by highlighting one of the fig leaves that trial lawyers attached to the measure to hide their real intent. It’s in keeping with her long history of using misleading ballot titles and summaries to help measures her allies like and hurt measures they don’t."[5]

Background

The Medical Injury Compensation Reform Act (MICRA) was signed in 1975 by Gov. Jerry Brown (D). MIRCA capped pain and suffering damages, as a result of medical malpractice, at $250,000. He did so in response to doctors who complained about medical malpractice awards being too high. If MIRCA was pegged to inflation, the cap would now be set at $1.1 million. $250,000 in 2014 would have been $57,600 in 1975.[3]

Support


Consumer Watchdog's video with Bob Pack explaining the initiative.

Political consultant Chris Lehane was hired to advise supporters.[2]

Supporters

Arguments

Consumer Watchdog issued a flyer following their signature submission on March 24, 2014. The flyer made the following arguments:[7]

  • "According to a study published in the Journal of Patient Safety, medical negligence is the third leading cause of death in the country behind only heart disease and cancer. As many as 440,000 people die each year from preventable medical negligence. That’s like a 747 crashing every 10 hours."
  • "The California Medical Board estimates that almost one-in-five doctors (18%) suffer from drug and/or alcohol abuse at some point during their careers – and leading medical safety experts have called for random drug testing to curb substance abuse and ensure patient safety."
  • "The Journal of the American Medical Association found that doctors are the biggest suppliers for chronic prescription drug abusers, and called for the mandatory usage of state prescription drug databases... A 2012 Los Angeles Times investigation found that drugs prescribed by doctors caused or contributed to nearly half of recent prescription overdose deaths in Southern California."

Opposition

Democratic political consultant Gale Kaufman was hired by a coalition of insurers, hospitals and doctors to oppose the measure.[2]

Opponents

  • Civil Justice Association of California[8]
  • California Citizens Against Lawsuit Abuse

Arguments

  • Kimberly Stone, president of the Civil Justice Association of California, said, “If you’re a highly-paid doctor in Los Angeles or San Francisco, it would be OK. You could pass those costs on to your patients. But if you’re an anesthesiologist or an OBGYN in a rural area or a low-income area, a dramatic increase in your medical malpractice insurance premiums could make a big difference to your ability to practice.”[8]
  • Tom Scott, executive director of California Citizens Against Lawsuit Abuse, suggested that the measure will make the ballot and will be the most expensive in state history. The money spent will be massive. He argued, “This is about trial lawyers and money, it’s not about victims, and the potential impact on our healthcare industry is huge.”
  • Dr. Richard Thorp, president of the California Medical Association, argued, "A ballot measure that is certain to generate more medical lawsuits and drive up costs for every health consumer in California is the worst possible idea at the worst possible time. This initiative is bad for patients, bad for taxpayers and bad for California’s entire system of healthcare delivery."[9]

Media editorial positions

See also: Endorsements of California ballot measures, 2014

Other opinions

  • San Diego Union-Tribune said, "Should California amend its 1975 state law capping pain-and-suffering damages in medical malpractice lawsuits at $250,000? Perhaps. Nearly 40 years ago, a quarter-million dollars amounted to a huge sum. Nowadays, it isn’t particularly much to someone who has suffered from egregious incompetence or neglect in their health care... [The measure] should be seen as part of a larger Golden State legal culture in which trial lawyers use lawsuits and the threat of lawsuits for what amounts to legal extortion... It shouldn’t be rewarded with a yes vote in November. Instead, Californians should press for sweeping reform that addresses the malpractice cap — and many other problems with the state’s legal system as well."[10]

Path to the ballot

See also: Signature requirements for ballot measures in California
  • Robert S. Pack submitted a letter requesting a ballot title for Version #13-0011 on July 24, 2013.
  • Robert S. Pack submitted a letter requesting a ballot title for Version #13-0016 on August 30, 2013.
  • A ballot title and summary were issued by the Attorney General of California's office for Version #13-0011 on September 13, 2013.
  • A ballot title and summary were issued by the Attorney General of California's office for Version #13-0016 on October 24, 2013.
  • 504,760 valid signatures were required for qualification purposes.
  • The 150-day circulation deadline for #13-0011 was February 10, 2014.
  • The 150-day circulation deadline for #13-0016 was March 24, 2014.
  • Version #13-0011 failed to qualify for the ballot on February 24, 2014.
  • About 830,000 signatures were filed with election officials for Version #13-0016 on March 24, 2014.[1]

Jamie Court of Consumer Watchdog said there is "absolutely 100% commitment to gather the signatures and go forward."[2]

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