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California Fails to Raise Medical Malpractice Cap by Floyd Arthur

A controversial ballot measure that would have raised the cap on damage awards for pain and suffering in medical malpractice claims was defeated last month in California. The measure, Proposition 46, would have raised the amount patients who prevail in a medical malpractice cases can receive for non-economic damages from $250,000to $1.1 million. It also called for drug testing of physicians within 12 hours of an “adverse event” and randomly if there were suspicions of drug use, and required physicians to consult a statewide database before prescribing drugs with a high potential for abuse.

California Fails to Raise Medical Malpractice Cap

Is California’s Medical Malpractice Cap Too Low?The California initiative was co-authored by Bob Pack, a father whose two children were struck and killed by a woman who was driving while under the influence of prescription pain killers and the muscle relaxant Flexeril in 2005. After the incident, Pack and his wife, who was also injured in the accident, learned that the woman had been arrested four times in the past for DUI. Incensed, they tried to sue the doctors who had supplied her with the

drugs.

No attorney would take the Pack’s case, citing the state’s low non-economic damage cap as the cause. (Attorney’s typically take cases like the Pack’s on contingency, taking a portion of any award as their fee.)

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Carmoon Group Ltd. Business Insurance Hempstead New YorkNor is the Pack’s case unusual. California’s “pain and suffering” cap is often given as the reason why attorneys avoid medical malpractice cases involving the poor, children or the elderly, who are unlikely to recover substantial economic awards. (The state has no cap on economic or punitive damages.)

Proponents of Prop. 46 pointed to cases like Pack’s as reason enough to change the law, adding that California’s draconian damage cap—the lowest in the nation—has been in effect since 1975. By contrast, most states have non-economic damage limits in the range of $300,000 to $600,000, and 15 states and the District of Columbia have no caps at all.

Nonetheless, opponents of the measure warned that quadrupling the state’s medical malpractice cap all at once would have disastrous results, resulting in more lawsuits and higher malpractice insurance premiums for physicians. Further, they claimed, higher premiums for doctors would drive up health care costs and even force some of physicians to leave the state. A barrage of advertisements, funded in part by physician groups, told consumers that the law could increase health insurance premiums by $1,000 per year.

Is Physician Drug Use a Factor in Medical Malpractice?Somewhat surprisingly, the second feature of California’s controversial measure—random physician drug testing –had the most popular support. However, both medical and legal experts called the provision “fundamentally flawed.” First, they pointed out, medical malpractice is rarely evident immediately. Many errors, (for example, missed or mistaken diagnoses) take months to appear. Thus, the law’s provision requiring drug testing within 12 hours of an “adverse” event was unrealistic and far too restrictive.

Additionally, there is little evidence to support the allegation made by some of the proposition’s proponents that a significant number of impaired doctors exist. Estimates of the degree of substance abuse among healthcare professionals vary widely. However, according to a 2007 report released by the U.S. Substance Abuse and Mental Health Services Administration, about 100,000 doctors, nurses, medical technicians and health care aides abuse prescription drugs or alcohol each year. Given that there are currently 878,000 licensed physicians, 2.7 million working nurses, and about 15,000 medical technicians, nurse assistants and other ancillary staff in the United States, that translates to an infinite small percentage of caregivers nationwide.

Medical Malpractice and Prescribing PracticesThe final portion of the failed proposal should have been the least controversial – a provision mandating that doctors check the Controlled Substance Utilization Review and Evaluation System (CURES) database before prescribing controlled substances. The database was established in 2009 – a joint effort between the U.S. Department of Justice and the state. However, participation in the system, which is available to both prescribers

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Carmoon Group Ltd. Business Insurance Hempstead New Yorkand pharmacies and is meant to alert them when patients are filling multiple prescriptions for controlled substances, is voluntary, and utilization has been low.

Making use of the already existing database mandatory, proponents argued, could in theory prevent the kind of overprescribing of dangerous medicines that led to David Pack’s children’s deaths.

Nonetheless, opponents of Prop. 46, funded an ad campaign against the use of CURES, calling it “vulnerable to hackers,” and warning Californians that their personal medical information could be subject to unwanted scrutiny if the proposition passed. (The ads ignored the fact that CURES had been existence for 6 years and had never been hacked.)

Despite the failure of the law, David Pack and other proponents of Prop. 46 have vowed to bring a similar measure back to the voters next year.

Medical malpractice is a complex issue, and—regardless of how high or low damage caps are in your state—no provider wants to be sued. Nonetheless, errors and lawsuits happen, which is why comprehensive medical malpractice insurance is a must. Whether you are currently uninsured and need help making a decision about coverage or have questions about a policy that’s already in place, feel free to contact us to schedule an insurance review today. We are available Monday through Friday 9 a.m. to 6 p.m. at 516-292-3780, or you can request a free consultation online.

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