Why we’re Voting NO on Proposition 46

If you’re not from California, this post maybe won’t necessarily impact you directly, but it is something important enough and close enough to my heart that I’m going to post it here regardless. I will preface this with the fact that my husband is a physician in California. We’re not hiding that fact, but even if he wasn’t, we would still vote the same way.

There is a proposition on the ballot this November called Prop 46. At first glance, it has a lot of really appealing ideas. It requires mandatory drug testing of physicians and punishes those who test positive. It requires physicians to consult with a national database before prescribing controlled substances, as a way to reduce prescription drug abuse and doctor shopping. Oh and it raises medical malpractice payouts to 1.1 million (from $250,000).

Once you get past that first glance, there are huge, serious issues here.

I’m not going to argue against drug testing for physicians. That was something that was added to the front of this proposition to try to hide what this is really about. If someone wants to draw up a clean proposition for vote that isn’t written by trial lawyers trying to make a buck, I will happily support drug testing physicians. I have been drug tested as a teacher and as a physical therapist, I have absolutely zero issue with drug testing and appropriately punishing/reporting physicians. So let’s just set that aside because it’s a trojan horse.

Malpractice Cap
A little history: The current malpractice cap was created by an act known as the Medical Injury Compensation Reform Act. The idea was to put a limit on the “pain and suffering” payouts that result from medical malpractice, as a way to help prevent malpractice insurance costs from being prohibitive to practicing medicine. It doesn’t cap payouts for medical care, it simply says that beyond the amount that will be paid to cover medical costs and medical care following an event of malpractice, you can only get an additional $250,000 for the suffering the patient/family experienced.

Proposition 46 quadruples that amount to over $1 million dollars for pain and suffering alone. Proponents of prop 46 will say that this is to correct for inflation and that the cost of increased insurance for physicians won’t be passed along to consumers, but they also don’t explain how that’s possible. Probably because it’s not.

If physicians now need to carry FOUR times their current malpractice insurance, how will they pay for that insurance increase? I know popular belief is that physicians sleep on their piles of money, but I can say with great confidence that it couldn’t be farther from the truth. To answer my own question, physicians will respond to their increased insurance in 1 of 2 ways: 1. They will stop practicing (either all together or at least in California) or 2. They will be forced to charge patients more- likely by way of yearly feeds to be a patient, charging for after hours services, or refusing to see low paying insurances.

So basically you will end up paying more out of your pocket or you will need to find a new doctor (who will charge you more). But, on the off chance that you’re one of a very tiny number of people who experience medical malpractice, you can now sue the pants off your doctor. And if you’re one of the lawyers who created this proposition, you can get 4 times as rich!

CURES Database
The other major, major issue with this proposition is the forced use of the drug history database. The Controlled Substance Utilization Review and Evaluation System (CURES) is a database that is used to track prescription use. Basically pharmacists enter schedule II-IV drugs into the system with the idea being to catch patients who doctor shop for medications and to track doctors who are “overprescribing” medications. Currently only a fraction of physicians and pharmacists use this database and it is poorly funded and doesn’t work well as a result. Prop 46 would require physicians to consult CURES before prescribing any schedule II or III medications.

I’m not going to lie, I think having physicians use the CURES database is awesome. There is strong support for this and I understand why. We DO have a problem with prescription drug abuse. We do have an issue with doctor shopping. And to a lesser extent and issue with overprescription. We need to address this, but the CURES database, in it’s current form, won’t do that.

The database isn’t ready for mandatory use. In California, once a proposition passes, it has to be enacted immediately. There is absolutely no way that the day after the election every physician or pharmacist could use CURES. It would crash within the first hour. This means doctors wouldn’t be able to prescribe, pharmacists wouldn’t be able to dispense medications. The database will take months and millions of dollars to be ready for mandatory use. Where exactly is that money coming from? And in it’s current form, the CURES database isn’t protected adequately, which means your sensitive personal medical information is at risk.

It’s really unfortunate that we’ve allowed 2 very important issues- drug abuse by physicians and prescription drug abuse by patients, get thrown together with a relatively obvious ploy for more money by trial lawyers. This proposition isn’t really about patients or protecting people, it’s about money. It’s about trial lawyers getting more money from malpractice at great cost to consumers, both financially and personally. It’s going to increase healthcare costs across the state, it’s going to cause physicians to move or retire and it’s going to put sensitive medical information at risk.

It’s just not worth it. We can do better. Voting no on this proposition doesn’t mean giving up on prescription drug abuse, it means seeing this for what it is: a wolf in sheep’s clothing. Vote no on proposition 46 and tell trial lawyers that they can’t trick voters into higher medical costs that harm patients and physicians and benefit a small group lawyers.

For more information, this is the most recent Legislative Analyst’s office report. It will better explain a lot of the costs.

Also, there’s a full list of donors who gave over $50,000 towards this proposition on this website. Interestingly, all but 2 of the donors are groups of lawyers.

(Just as an FYI, I am moderating comments on this post- but not original comments. You are free to share your opinion as to why you agree or disagree with this post and I encourage you to do so. I wrote this and am prepared to handle the disagreement, however, you are not free to harass other commenters because they disagree with you.)

54 Responses to “Why we’re Voting NO on Proposition 46”

  • purplebreath:

    Wow. Fantastic information. Thank you.


  • Sara:

    While I usually find myself agreeing with your point of view, I don’t on this issue. I am an attorney, but not the type you villanize in your post.

    My state does not cap medical malpractice. Patient fees are unheard of. I don’t know what costs are in California, but for comparison, an office visit runs around $120-$150 here. I work quite a bit with families on the state healthcare program. They do not have difficulty finding and accessing medical care.

    I lost a dear friend to gross medical malpractice. Had the courts deemed her life, and the loss it created to her husband and her 3 and 6 y/o daughters, at $250k, it would be insulting and an injustice.


    Katie Reply:

    I truly don’t mean to vilify attorneys as a group. I hold several of them as very close friends.

    In California, patient fees are not AT ALL unheard of. 3 pediatricians I called last month had yearly fees. A friend goes to an office with a 35 dollar monthly fee. Another has a 20 dollar per after hour call fee (which I don’t disagree with at all). My husband has been in contact with physicians who have moved across state lines because of this very situation. There are states that have no neurosurgeons who perform epilepsy related surgeries because they cannot afford their malpractice insurance after similar caps were removed. This puts patients at a great disadvantage.

    I honestly don’t know how you can put a price on a person’s life, period. Is it fair to force all physicians to quadruple their insurance out of the blue because there are a few that have or will screw up? I’m not so sure, it doesn’t mean I’m not compassionate towards those who have suffered medical malpractice. It doesn’t mean that I think that a life isn’t worth an endless amount of money. I don’t mean to be callous about this, but it significantly impacts my family’s ability to pay our bills and our loans, so I think we see it from different sides of the court here.


    Jo B Reply:

    @Sara, I agree with Sara if Sara is the Lawyer and Not the Doctors Wife Im confused on that. It seems like all Lawyers get a bad rap sometimes. I feel this prop 46 is a good one & I will be Voting Yes. What is it that every time there is something good,here comes the Scare tactics of How much it’s going to cost we the people. Heck, they raise costs on us anyway and we don’t do a thing.. but that’s another subject. Oh and by the way, right now there are tons of TV ads that are being aired to Vote NO on Prop 46..Hmmm, who’s pay’n for that which cost a lot.? I understand your husband is a Doctor, and good for him. As long as he is doing nothing wrong then he should be ok. You did mention this”If physicians now need to carry FOUR times their current malpractice insurance, how will they pay for that insurance increase? My answer would be The same way we the people pay for our Increase of Insures . But I have to question the 4 times the amount you stated. That only happens if someone has done something wrong.. kinda like car Insurance when people get in an accident or get a ticket their Insurance goes up.. :)


  • GreenInOC:

    I agree with Sara.

    An interesting documentary on the subject of tort reform is “Hot Coffee” – it’s streaming on Netflix.


    Brad Reply:

    @GreenInOC, I disagree with Sara and you both. Trial lawyers in CA have tried since the 1970′s to overturn MICRA, and the assembly and senate have knocked it down as it is BAD for Californians. I am a physician who moved to the state in part because of the Tort laws. If they are overturned, I am leaving the state as it will be too expensive to practice. Sara’s point that her friends life was only worth $250k is not true, as MICRA only limits NON-ECONOMIC DAMAGES. In cases where malpractice is proven, her family would still be entitled to unearned, future earnings. This is where the trial lawyers will try to confuse the public. Don’t worry though, the CMA will work tooth and nail, not to mention us physicians in the trenches, to defeat this misuse of the ballot initiative in CA. Unlike the trial lawyers, I get to speak directly to all of my patients on a daily basis, and trust me.


    Eric Andrist Reply:

    @Brad, Some people only qualify for non-economic damages! People who have no income source outside of the home, senior citizens, children and the disabled all often have little to no economic damages and thus only can sue for non-economic damages, which is capped at $250k. My sister was mentally retarded with no job, so “her family” is NOT entitle to “unearned, future earnings.”

    So if you’re telling your patients that, you’re lying to them.


  • Lex:

    As you know, like Sara, I too am an attorney (family law but that isnt relevant).

    I have worked on a medmal case (only one for a close friend) in which a doctor failed to provide any information on side effects for a totally elective procedure. When I say failed to provide information I mean ANY information. Side effects, alternatives, etc. Nothing.

    This young woman ended up suffering from one of the “rarer” and more serious side effects. She is very much so ruined for life. She is 20 years old. The specific side effect was even listed on the “form” informed consent sheet that was provided by the manufacturer of the equipment used for the procedure. It was something the doctor knew about and didnt even disclose to her.

    The doctor was wrong. So very very VERY wrong. And she deserves every punishment she gets. And 250k for the ruined life of a 20 year old who had so much promise does not seem fair.

    I understand your concern. I really do. But every reputable study done shows that medmal caps do not increase the cost of healthcare nor do they lower insurance premiums nor do they lead to a decrease in medmal cases filed.

    When a doctor commits a very wrong action (no informed consent, botched surgery, whatever) and it leads to the death of someone how can you say that person’s life is worth only 250k? The life of a young girl who had the world in front of her? The husband with 2 kids? The mother with a young child? Even a grandfather? It doesnt even have to be death. Even the maiming of someone isnt ok. 250k cannot make the person who can no longer have kids because the doctors screwed up her C-Section whole. It cant make it better. But it can penalize their wrong doing to a point where they might not do it again.

    As for the “informed consent” case I took on, the new forms the doctor has not list the side effects and alternatives. Something the form my client signed didnt have.


    Katie Reply:

    Okay, hooooooooooold on.

    I’m not arguing that all physicians are good. I’m not arguing that we shouldn’t punish the pants off of negligent ones. Not at all. I am 100% pro-punishing physicians who don’t provide quality medical care and who harm patients. I want that to be painfully clear. This isn’t me saying that patients shouldn’t be compensated or that physicians shouldn’t be punished. I am not looking at medical care through rose colored lenses here. I’ve seen and heard of malpractice and I work with patients who have been on the receiving end. I’ve actually lost not one, but two grandparents to medical malpractice. There’s no way to ever not feel like it’s the end of the world. Seriously, I believe that you should be able to be compensated for pain and suffering.

    But how can we ever say how much someone’s life is worth? Does getting $1.1 million dollars change the impact of that death? How is it fair that out of the blue we’re going to require all physicians to carry 4 times the insurance for malpractice? That is a huge financial burden, on top of the already significant expenses to physicians. My husband has accrued 100k in interest on his student loans in the past 6 years. We have huge bills to repay for his education and just as we’re about to crawl out of that hole, now he’s going to have to carry 4 times the insurance? Is it fair that every physician has to do this when the vast majority of them are good? I think this is not acceptable. There was to be another option besides a sudden proposition that stands to cost consumers a lot of money, reduce the number of physicians when we already have a shortage and potentially force physicians to retire or leave the state.


    Lex Reply:


    I agree there should be some sort of plan where if you dont get charged with med mal or lose a med mal case you should have lower insurance. Like the vanishing deductible I suppose.

    But the idea that 1.1 mil changes the impact of death, well that isnt the point of non-economic damages. The point of the non-economic damages (not pain and suffering or the cost of the procedure/medical bills) is to prevent something bad from happening again.

    I understand where you are coming from, but so very many studies have show that changing the limit on damages doesnt make a lick of difference on malpractice insurance. http://www.medscape.com/viewarticle/751009

    I dont think it is fair to tell a woman who lost her husband due to negligent doctors “Sorry but you only get 250k because that is what his life was worth” for the possibility of increased med mal insurance, when the studies suggest that will not be the case, especially since malpractice insurance is only 2% of healthcare costs (according to the CBO http://www.cms.gov/Research-Statistics-Data-and-Systems/Statistics-Trends-and-Reports/NationalHealthExpendData/downloads/tables.pdf)


    Katie Reply:

    @Lex, I get that overall malpractice costs have not increased, but having physicians suddenly have to carry 4x the insurance will absolutely raise rates, I mean, how could it not. Do we trust insurance companies to not take advantage of this? I surely don’t. In the same article you quoted, it does, in part, credit the caps with keeping malpractice insurance affordable,

    “Karls attributes the recent downward curve in premium rates to several causes. One is a wave of tort reform legislation passed by various states in the preceding 10 years that, among other things, limits how much plaintiffs in a malpractice case could collect for noneconomic or pain and suffering damages. A $250,000 cap found in California, Texas, and other states is what organized medicine seeks on a national basis. Advocates of caps say they discourage frivolous lawsuits and prevent runaway jury awards.

    Those laws, Karls said, have led to fewer malpractice claims being filed, which in turn has lowered premiums — a pattern attested to by a number of academic articles.”

    I have to imagine if we suddenly quadruple that cap, there’s no way an insurance company is going to be like, okay, we’re cool, we’ll just make your premiums cost the same, but give you 4 times the coverage! (I have some feelings about insurance companies if that isn’t evident) I would like to hear from these insurance companies. I would like to see guaranteed rates and if they can prove that they aren’t going to jack prices up, I would be less inclined to be opposed. But I have yet to see an insurance company who cares about anything more than they care about their income.

    JB Reply:

    Even though I’m not an attorney and even though Lex does family law, he has it when he says “The point of the non-economic damages (not pain and suffering or the cost of the procedure/medical bills) is to prevent something bad from happening again.” That in essence is the definition of PUNITIVE damages. Non-economic damages are “pain and suffering” and are non-quantifiable. Some suffer more, some less from the same loss.

    If this initiative were to pass, the independent CA Legislative Analysts says it would cost CA taxpayers “10s to 100s of millions”. That’s why over 100 organizations oppose, including Dems and Reps in the legislature, Planned Parenthood, Community Clinics, Unions, etc primarily because they know access would greatly diminish and some clinics that care for the poor may have to close. See http://www.NOon46.com for details.

    Eric Andrist Reply:

    @Lex, That’s the OLD CA Legislative Analysts report. He issued a new one on July 17th that ends with him saying that Prop 46 will actually save the state money. http://www.sos.ca.gov/elections/vig-public-display/110414-general-election/prop-46/prop-46-leg-analysis.pdf

  • Steven:

    Vote No on Prop 46!

    I would invite everyone to read through Prop 46. It is the most deceptive ballot initiative that will be presented to the voters this fall. Disguised as a “Patient Safety” initiative, it really is a “Lawyer Enrichment” initiative that will be paid for by all Californians, but mostly the poor and middle class. Leave it to California Trial Lawyers to parade around bad doctors and victims of malpractice to try to increase their payday in California. Too bad they don’t tell the stories of all the people who live healthy lives and were saved because they had access to medical care that is threatened by this initiative. Trust me, if this initiative passes, doctors and community clinics will close their doors as practicing in California will no longer be viable. California already has a 20% doctor shortage and a 30% lawyer surplus. Should we really be passing laws that will drive doctors away and attract lawyers while increasing our health care costs by hundreds of millions per year?

    Furthermore, patient safety experts recently released the follow study regarding things to do to improve patient safety.
    The safety of hospital stays and encounters with health-care providers got a boost today with the publication of 22 evidence-based “patient safety strategies.” Although most focus on care that takes place in hospitals, they extend to almost all interactions between individuals and their doctors, nurses, and other care providers. The top 10 strategies include:

    • The use of checklists before, during, and after surgery, in the same way that airline pilots use checklists before taking off—to be sure that every single important thing has been done, and nothing accidentally neglected

    • Institution of meticulous procedures, including the use of checklists, when putting a central line into a patient and caring for the line. (A central line, also called a central venous catheter, is a tube placed into a large vein in the neck, chest, or groin. It is used to deliver medication or fluids and conduct various tests.) Unless these lines are properly placed and maintained, they can become infected.

    • Finding ways to use fewer urinary catheters to help people urinate, because these catheters can cause urinary tract infections

    • Preventing pneumonia and other infections in people on ventilators by elevating the head of the bed, taking breaks from the use of sedating medication, and other strategies

    • Washing hands

    • Avoiding the use of abbreviations for medications or procedures

    • Putting in place simple strategies for preventing pressure ulcers in people confined to bed

    • The use of gloves, gowns, and other so-called barrier precautions to prevent healthcare-associated infections

    • Using ultrasound to guide the placement of central lines

    • More attention to treatment and prevention efforts for people who develop blood clots in a leg, arm, or lung (venous thromboembolism)

    The recommendations were published online in the Annals of Internal Medicineas part of a four-year effort by a national team of patient-safety experts and analysts supported by the federal Agency for Healthcare Quality and Research (AHRQ).

    Of importance is that Prop 46 includes none of these. Why not? Because it is all about raising the awards of medical malpractice suits. The lawyers knew that they could not pass a ballot measure on those merits alone, so the mixed the ballot measure with things like doctor drug testing to confuse the public.

    Join me and VOTE NO on 46


    ginger cantwell Reply:

    VOTE “YES” on prop 46

    I totally disagree. I sued my doctor who failed me and caused me to have a life threatening condition because he did not take the time to investigate my problem. He was a specialist, advertised he treated difficult rashes and Internal medicine. He did not even do the basics, blood test, biopsy or a health history. After 3 visits when my conditions got worse he still never took the time to ask any questions, all he did was prescribe me a toxic medication “off label”. I ended up in the hospital. Did I think he should pay, absolutely. That wasn’t the end of it, I still suffer from multiple problems and live in fear daily that it could happen again. He lost and my reward was that may be one day he won’t do the same thing to someone else.

    If you really think our medical system is going to pot because of prop 46 I disagree. The most profitable companies are the drug and insurance companies. They are beefing up the cost not the victims of negligence.



  • Thanks for your post, Katie!

    Even one medical error is too many. That’s why the entire health care community is always looking for ways to improve patient safety. But don’t be fooled by this measure. Increasing lawsuits is not the answer and will do absolutely nothing to improve health care quality.

    Just to clarify, California law does NOT limit medical malpractice damages to $250,000. In fact, MICRA was set up to ensure patients received fair compensation if they were injured. Under MICRA, patients can receive:

    UNLIMITED economic damages for any and all past and future medical costs.
    UNLIMITED economic damages for lost wages and lifetime earning potential.
    UNLIMITED punitive damages – punishment awarded for malicious or willful misconduct.
    Up to $250,000 for speculative “non-economic” damages.

    The $250,000 cap reduces incentives to file meritless lawsuits, while at the same time ensures that legitimate claims can move forward.


  • Jodi:


    This is great info! Depending on how this turns out in California it could set precedence across the country!

    You can never put a price on someone’s life! Quite frankly, there’s no amount of money that would be acceptable if my family was ever in this situation. Whether awarded $250,000 or $10,000,000 the facts are still the same, someone I love and care about deeply is gone forever! In the event they survive but suffer permanent injury due to a mistake is a different story & money matters more because the cost of a lifetime of care would kill a family financially and could very well make quality care unattainable.

    People are quick to sue & sometimes don’t take personal responsibility for themselves. It’s going to become harder and harder to find quality doctors because they just won’t be able to afford to practice. I’m not saying that docs should be making millions of dollars annually but they need to be able to live like everyone else.

    I hope in the very near future the CURES system is up and running. It’s about time that doctors and patients are held accountable for handing out & shopping doctors for meds.

    Hope the next two weeks go by quickly for you, Katie! I think August 14th is an excellent day to be born (my birthday)! Eli will come around. Maybe he can spend some extra time w/ your sister and his best friend (I’m racking my brain to think of her name & Addie is sticking in my head)! When is your last day @ work? How long will you be able to stay home? I hope that you have a quick & easy delivery.

    Take care!



  • LP:

    Katie, I quote “I’m not arguing that we shouldn’t punish the pants off of negligent ones.
    Not at all. I am 100% pro-punishing physicians who don’t provide quality medical care and
    who harm patients”.

    I wonder how has that worked under MICRA rules.

    I am not sure of what understanding you have about this magical punishment system that
    you so eagerly defend. Because as it is right now, there is absolutely no incentive for the medical establishment to report, dismiss and prosecute even the most blatantly negligent practitioners.

    I am also a resident of CA, and unfortunately, the spouse of a victim of severe case of
    medical negligence under the hands of Kaiser Permanente. You can see the amazing before and after pictures right here.


    All because they let an infection, easily treatable with penicillin, to run amok. Only
    because they wanted to save themselves a $30 blood test. As you can see, Kaiser really
    wants to make you thrive.

    During litigation, Kaiser’s defense was pretty much: “Yes, this doctor is a moron and
    likely negligent, but even if she had given good advice, the outcome would have been the
    same”. Even though Kaiser knows that this doctor performed under the standard of care,
    they still employ her, with absolutely no disciplinary action. No report to the California Medical Board, no quality control review to avoid these cases from reoccurring.

    What you seem to forget, is by giving a low cost to a human life, there is a big incentive for HMO’s to lower their standard of care. Under Kaiser’s standard of care, it is acceptable to diagnose every fever during flu season as influenza, without any further testing. They are fully aware that doing this pretty much amounts to a death sentence to a patient that has sepsis (which I may add, more common and causes more deaths than Cancer and HIV combined in the US).

    But what would the consequences, I might ask, for doing this?. If the patient dies, the
    most I need to pay out to the families is $250k (and not even that, as most cases
    involving death are not even litigated due to the high cost of the discovery process).

    For the lucky survivors, they payout is zero. Medical Negligence is labeled as an error when a physician acts below the standard of care. If the standard of care is very low to
    begin with, the chances of prevailing in court are almost non-existent. That is why 76%
    of the cases by plaintiffs are lost.

    So going back to this “punishment” that you so eagerly defend, the California Medical Board has been so ridiculously ineffective at disciplining blatantly negligent doctors that even lawmakers threatened to shut it down



    In regards of the comment about the increased cost of medical liability insurance, this

    post from a doctor (completely unrelated to Prop 46) is quite enlightening about its true

    cost, which is between 3k-12k a year http://www.truecostofhealthcare.org/malpractice.

    You probably pay more in health insurance every year.

    In fact, large HMO’s such as Kaiser do not even carry liability insurance, and self-insure. That means litigating or settling every single complaint. By settling, the patient admits that Kaiser has committed no wrongdoing. Therefore, the doctor still practices with no disciplinary action.

    You may say: why settle then?. Well, because caring for a chronically disabled person is damn expensive. My husband’s care costs about $50k/year.

    Another comment that seriously peeved me is your comment that ” Does getting $1.1 million
    dollars change the impact of that death? “. It certainly does to the dependents and families who either depend on the wages of the victims to make do, or those who have incurred in incredibly high medical expenses in their care. $1.1 million dollars would not even cover half of the medical costs that my husband will need during the rest of his life.

    For somebody who has such strong opinions, going so far as being a mouthpiece for
    #NoonProp46, you seem quite uneducated in this matter, and honestly, uncaring and cold,
    despite you assertions of having “nothing but compassion” towards victims. It seems that
    your only concern is how much it will cost you. Believe me, it costs you already, as who
    do you think pays for the medical and welfare costs that medical malpractices causes in society?. All of us do. My husband went from making 6 figures to being a recipient of SS
    and Medicare. Others have to be recipients of food stamps and SSDI because they cannot
    make ends meet, all while HMO’s fail to take basic responsibilities for the financial burden of their mistakes. This is nothing but Corporate welfare at its best.


    Katie Reply:

    First, I am quite sorry for what happened to your husband. Kaiser’s complete lack of responsibility and poor handling of this is exactly why we need reform, however, this proposition isn’t what will do it. It won’t punish Kaiser or impact them at all.

    You are misunderstanding the cap. The 250k cap doesn’t mean that if a patient is injured or killed by medical malpractice that the only payout the family can receive is 250k. Not at all. The 250k is pain and suffering money. Without this proposition you are still entitled to: unlimited money for medical costs, unlimited money for lost wages/lifetime earning, unlimited punitive damages (THIS is how the physician is punished, NOT through the pain and suffering). And on top of that, you can get an additional 250k for your pain and suffering. No one is saying that if a doctor is criminally negligent that the only money a family should get is 250k. Not at all.

    You said, “‘Does getting $1.1 million dollars change the impact of that death?’ It certainly does to the dependents and families who either depend on the wages of the victims to make do, or those who have incurred in incredibly high medical expenses in their care. $1.1 million dollars would not even cover half of the medical costs that my husband will need during the rest of his life.” Again, that’s the thing, that 1.1 million dollars is NOT meant to cover the medical costs. That is a separate part of a law suit. As is the wages that are lost. The 1.1 million doesn’t even punish the physician.

    My point about the 1.1 million was simply that I don’t understand how we can ever put a number on a person’s life. As I mentioned earlier, I have lost 2 grandparents to medical malpractice. 1 died because she was not given the proper anti-coagulant and ended up with a pulmonary embolism that killed her. The other had a physician who failed to inform my grandparents that my grandfather had a) a mass in his lungs and b) Parkinson’s Disease, both of which caused him CONSIDERABLE suffering. He died and had tumors throughout his entire body and never received a single painkiller or compassionate care. I have seen medical malpractice first hand. I treat patients who are on the receiving end of it. You can call me uncaring all you want, but disagreeing about a proposition that isn’t really intended to help californians and will instead raise healthcare costs and drive more physicians out of state isn’t reflective of my caring. It’s reflective of my ability to separate my personal feelings from the matter. This proposition is bad. It’s not going to stop malpractice, it’s not going to make crappy doctors better. It’s not going to change Kaiser or any HMO for that matter. It is going to drive up costs for all physicians, which will cause them to leave or stop practicing. The last thing the state of California needs is fewer physicians.

    I find it sort of ironic that you chastise me for caring about how this proposition will impact our family, yet you’d like me to change my position based upon how you feel it will or would’ve impacted yours. I oppose this proposition for reasons far beyond my family’s income and bills. I oppose it because it is not going to work, it will cost millions of dollars (that I would MUCH rather give to people on SS or food stamps, both of which are programs I strongly support and have zero problem providing money for), it will not reduce malpractice, it will cause physicians to leave and overburden those who remain and it will allow a group of rich people to get richer. It does also happen to threaten our livelihood, but that is a secondary reason (even if malpractice is “only” 12k, quadrupling that without changing salary is a HUGE amount of money for a non-negligent physician to pay, don’t you think?). I’m sorry, truly sorry, if you find this offensive or unkind. I can assure you that it’s not how I feel towards you or anyone else, but you are entitled to your opinion.


    Eric Andrist Reply:

    @Katie, I’m going to comment in a new post, but I had to comment here first because you are clearly uninformed about so many things, including how the MICRA cap works, or I should say, doesn’t work.

    I gave up my career to care full time for my disabled sister when our mother died. My sister died from medical negligence in March 2012 in the very same hospital where our mother died from hospital acquired sepsis, just three months after actor John Ritter died there and his family sued/settled for millions of dollars in economic damages. Just recently I met actress Alicia Cole who went to this very same hospital and contracted the “flesh eating disease” and nearly died. You can see her story here: https://www.youtube.com/watch?v=67vDXQMxUz4

    Because my sister was disabled, did not work, was not married and had no children, her medical costs were covered by the state. There are next to no “economic damages” in our lawsuit. So the only thing we can really sue for is the “non-economic” or “pain and suffering damages.” THAT is capped at $250,000 by MICRA. While we can sue for punitive damages, they are rarely ever awarded…less than 5% of the time.

    TONS of victims of medical negligence fall into this category of only being able to sue for the non-economic damages. Children, senior citizens and women who don’t work outside the home are all unfairly discriminated against by the MICRA law. So there is no “on top of the economic damages” for these people!

    The original author of the law, Senator Barry Keene, also agrees that it needs to be raised to match inflation: http://goo.gl/TC4D1C

    Perhaps until you suffer medical negligence yourself, or to a loved one, or heaven forbid, lose someone to medical negligence like I did..twice…you won’t understand putting a dollar figure on a life. Unfortunately, that’s how our judicial system works. Trust me, if there were other ways of punishment of these negligent doctors, I’d likely be for it. If I lost my arms and legs to a hospital acquired infection like Annette Ramirez (https://www.youtube.com/watch?v=ZgZy9a3HTqo), and could ask for the people responsible to lose their arms and legs as well….I would! Perhaps that would be more equitable to you than making them pay money?


    Katie Reply:

    Eric, I know I’m not going to change your mind, but you need to back off some assumptions here.

    I have had a loved one die and another loved one suffer horribly as a result of medical malpractice. My grandmother did not receive a critical medication that was ordered (a blood thinner) following a major surgery and 2 days later she ended up with an undiagnosed blood clot that traveled to her lungs and killed her. My grandfather had imaging that showed a mass in his lungs, yet, his physician never told him about it. On top of which, they diagnosed him with Parkinson’s without ever providing any medical care for it. When he passed away his body was riddled with cancer and he received no compassionate care of any sort because he did not receive his cancer diagnosis until he day after he died. He never was placed on any Parkinson’s medications and was unable to walk for the last year of his life without any explanation. All care fell to my grandmother with no assistance from anyone. My grandpa suffered tremendously, as did our family, in his last few months. It was horrific and it is something I will never be able to get over. Notably, my family chose not to pursue litigation in either case for personal reasons.

    Please do not assume that because I disagree with you that I have not been touched by malpractice or that I don’t understand this proposition.

    Since you seem to have all the answers, please tell me how you expect physicians to pay for quadruple the malpractice insurance? How are we going to be able to treat patients on medi-cal or medicare when physicians already cannot afford to see them because of poor reimbursements, which is a problem that will escalate HUGELY once malpractice costs increase and physicians need to bring in more income to compensate? How will we get people medications in a timely fashion when CURES, which is supposed to be operational the day the prop passes, will not be anywhere near operational at that point? Where will the money to update CURES come from? How do doctors prescribe or pharmacists fill schedule II-IV medications in the meantime?

    I am not opposed to malpractice reform, but this proposition does. not. work. It doesn’t. It’s going to harm so many more Californians than it could possibly help.

    I am not naive to the severity of malpractice, to the way it impacts life in economic and non-economic ways. I simply disagree with you on this proposition because I see how costly it will be for all Californians and how little it will do to curb malpractice.

    Eric Andrist Reply:

    @Eric Andrist, I can assume if I want! You didn’t mention those stories in the original article so why wouldn’t everyone assume you hadn’t been touched by medical negligence?

    I answered your question in my subsequent post. But again, insurance for doctors will only quadruple if doctors and hospitals continue to be negligent at the same rate they are now. Prop 46 is meant to be (in part) a deterrent to keep them from being so rampantly negligent. I will concede that it is a small portion of doctors doing all the negligence, and they are spoiling it for all the good ones. They need to stop their “Code of Silence” and their notion that they have to be loyal to each other and stop condoning and concealing all this negligence! When they do that, their insurance rates will fall.

    It’s very sad that you chose not to do any real research before writing your article because you appear to be an intelligent person otherwise.

    You have no way of knowing that this proposition doesn’t work because it’s not even in place yet. However, 22 states have no medical tort reform, 13 have found it to be unconstitutional and they aren’t having the problems you say will happen here!

    You can disagree all you want, but if you base your choice to disagree on faulty information, you’re hurting yourself and all the others that you persuade to follow you.

    Katie Reply:

    (Also- you had a duplicate comment- this one seemed to include a little more so I kept this one, but if you preferred the other one, I can resurrect it for you, just let me know.)


  • LP:


    I apprecIatte your response, but I would like to make a few points.

    You say: “This proposition is bad. It’s not going to stop malpractice, it’s not going to make crappy doctors better. It’s not going to change Kaiser or any HMO for that matter.”

    I disagree. And you know why? Because the medical industry, as many other industries, is
    run by “Risk management”. A clear example would be GM. Why do you think they are
    recalling millions of cars, when there have been only 13 deaths?. Believe me, it is not
    from the goodness of their hearts. It is because there are no caps on damages,and the
    fear of a multi-billion dollar judgment -along with their reputation- is enough for them
    to act. For HMO’s and medical professionals, there is a low -or no cost- involved in
    turning a blind eye on poor practitioners. Doing so would be admitting wrongdoing.

    Nevertheless, if they see that the risk of keeping a poor doctor is quatrupling their
    costs, there is a big incentive for removing them from practicing. That is simple economics.

    You seem quite knowledgeable about the whole insurance caps issue. Let me put two
    scenarios for you, using my husband as an example.

    First Scenario: Husband lives – but is left severely disabled:

    Value of the case:

    Pain and suffering: $250,000
    Loss of wages: 45% of 150k/year (rest covered by disability and SS benefits) until
    patient becomes 65. Total: $1,800,000
    Medical costs: Caregiver 24/7 at $16/h until end of life (aprox 80): 5,100,000.00
    Prosthesis: $800,000.00
    Medical insurance: $600,000
    Reconstructive surgery: $1,000,000


    Pain and suffering: $250,000
    Loss of consortium: $250,000
    Loss of wages: Covered under CA PFL

    TOTAL VALUE OF CASE: $10.1 Million

    Second scenario: Husband dies


    Pain and suffering: $0. Patient is dead, therefore, there is no claim.
    Loss of wages: $0. Patient is dead, therefore, he is in no position to work anymore
    Medical costs: $0. Patient is dead, therefore, he is no longer needs medical care


    Pain and suffering: $250,000
    Loss of consortium (normally payments are below the pain &suffering limits): $250,000
    Loss of wages: Covered under CA PFL

    TOTAL VALUE OF CASE: $500,000

    HOWEVER! if husband happen to carry a life insurance policy with company A, loss of
    consortium would be $0, as company A would be responsible for it. It would be left for
    company A to litigate against Kaiser for these losses.

    To litigate either case, a plaintiff’s attorney would need to incur in the following:

    Arbitrator: $550/h x 8 h x 20 days= $44,000 (as is split 50-50 with defendant)
    Transcription services: $60/h x 500 h = $30,000
    Paralegal cost: $50 x 200 h = $10,000
    Expert testimony: $1,500/h x 100 h= 150,000

    Total cost of litigation: $234,000. The plaintiff’s attorney needs to spend all this money, regardless of outcome. He loses, he does not only makes zero, but also has to pay all these costs out of his/her own pocket.

    Now you can see why my husband’s case had its day in court, and why those involving
    fatalities (including your grandparents), or children and the elderly do not. And now you
    see the perverse incentive for HMO’s to have the patient die when they have been victims
    of medical negligence.

    Nevertheless, going back to see Kaiser’s history of payments to claimants, the amount
    given is nowhere near to the actual value of the case, as you can see in this link, even
    though there have been plenty of catastrophic injuries. The patient is normally forced
    to settle for a value far less than the value of their case, even in cases of severe and
    chronic disability.


    Again, going back to you comment: “This proposition is bad. It’s not going to stop
    malpractice, it’s not going to make crappy doctors better. It’s not going to change
    Kaiser or any HMO for that matter.”

    Of course it will. Because when a doctor is sued, and there is a judgment against them,
    the HMO’s is mandated to report it to the California Medical Board, and the CA medical
    board is forced to list this history in their public record. And again, for any hospital
    that prides themselves on their care, it will be a tough one to justify both to the board
    of directors and the insurance carrier why a doctor with such a history is employed at
    the hospital. Economics again doing what it should.

    You say ” I oppose it because it is not going to work, it will cost millions of dollars (that I would MUCH rather give to people on SS or food stamps, both of which are programs I strongly support and have zero problem providing money for):. Well, I appreciate you sincere support, but I rather spend millions of dollars, instead of billions of dollars, and have had my husband, and the hundreds of thousands of victims to be able to have a healthy and productive life, than being recipients of your charity. Besides, given the climate of our current government, I ironically laugh at the likelihood of the Republican party to raise the level of benefits of either program.

    You seem to forget that you live in the US, where corporations are people, and under the current political climate there is no chance of ever increasing benefits to those who are poor, let alone disabled. You also seem to forget why we have OSHA, seat belts, air bags, clean water, air pollution limits, warnings on cigarettes: because those consumer attorneys that you eagerly despise fought for you (yes, because they wanted to make a buck of course) to make your life safer. Doing those changes involved costs that tobacco, construction, auto and many other industries had to make, but you see that society at large is better for it, and those investments resulted in savings for all of us and a better health for all of us. Doctors seem to believe that just because they do not mean to do harm, that they should not be punished when they a mistake.

    So next time you think about health care costs, see that this involves far more than malpractice (which as many doctors say, represents a minuscule portion of healthcare costs, even in states with no caps). It means better prevention, it means access to dental care, it means doing unpopular stuff such as taxing sodas and fast food, it means investment in infrastructure so people do not rely so much in cars to move, it means tackling food deserts, it means better control of pollutants and other carcinogens. However, since no one wants to touch these complex issues, they rather save money in nickel and diming those who are maimed or killed.

    The reason why doctors don’t want this to pass is because a deposition is the only time in which their judgment is questioned under the current state of affairs. And since it is uncomfortable, and stressful, they simply don’t want it, even though the Pack foundation tried to involve them and have their input before putting a proposition on the ballot. They simply refused to change the status quo.


    Katie Reply:

    @LP, I guess I’m confused about why you think this proposition will suddenly cause a change in the penalty put on a lousy doctor. You said, “Because when a doctor is sued, and there is a judgment against them, the HMO’s is mandated to report it to the California Medical Board, and the CA medical board is forced to list this history in their public record.” but you can already sue them, so why is this different? All it does is allow you to sue for more money, it doesn’t change that you can sue them, it simply changes the maximum payout for non-economic damages.

    “The reason why doctors don’t want this to pass is because a deposition is the only time in which their judgment is questioned under the current state of affairs. And since it is uncomfortable, and stressful, they simply don’t want it, even though the Pack foundation tried to involve them and have their input before putting a proposition on the ballot. They simply refused to change the status quo.” Nope. No way, no how. This assumption you’ve made literally couldn’t be more wrong.

    I am married to a physician. I am friends with more physicians than non-physicians. Not a single one of them is concerned about depositions. Every single one of them is concerned about how much more it will cost them to practice in the state of California if this passes. They are concerned about their peers leaving and increasing their already overburdened case load. This law doesn’t change depositions, it changes how much money families get for non-economic damages and it changes how much malpractice insurance physicians will have to carry.

    As a side note, I think it’s sad how little you think of physicians. They are people just like you, who need to support their families. They have sacrificed thousands of hours, have paid hundreds of thousands of dollars towards an education. My husband specifically has spent 10 years in training, owes over $330k in student loans and makes less than a public school teacher right now, working 65-70 hours a week. Those are 65-70 hours he doesn’t get to spend with his family because he is helping other families. Physicians do this because it is a calling to help other people. It really, genuinely saddens me that you have so little regard for them and the amount of effort they put into providing care for their patients. One bad doctor is an unfair representation of an entire profession.

    I think you are overestimating this propositions potential impact on behavior. My point about it not curbing malpractice is that if one is a negligent doctor and is going to leave patients on a table or not provide the standard of care, this proposition isn’t going to change who they are. Hearing they can be sued for more isn’t likely to change their moral code and suddenly make them put the lives of their patients above whatever is motivating them to be a crappy doctor. I think of it like the death penalty. We thought it would reduce crime, except that seeing other criminals get killed doesn’t change the moral fiber of someone who is considering murdering someone else.

    I am not denying that there is room for reform here. Not at all. But suddenly quadrupling the non-economic damages limit isn’t the way to do it. It isn’t going to cause bad doctors to be good, it’s going to discourage physicians from practicing in this state, which is not what we want or need. It’s going to cost us millions of dollars to try to update a drug database that has no hope of being ready in November, which will prevent physicians and pharmacists from providing appropriate medications in any sort of timely fashion (one estimate says the database won’t be ready for use until Spring 2015- how will physicians prescribe needed medications before then?). If we want to reform malpractice, let’s not let trial lawyers, who stand to benefit tremendously, write the prop. Let’s look at the cause of malpractice and see how else we can stop it. This proposition is painfully flawed and will harm many, many more Californians than it stands to help.


    Eric Andrist Reply:

    @Katie, You CAN’T always just sue someone. It took me over 8 months to find a lawyer to take my case with over a dozen turning me down because of MICRA (remember, my sister’s case has no economic damages). You only have 1 year to file a case, so I only had 4 months left to find a lawyer who would file my case, or I would have been out of luck and the doctors and hospital that killed my sister would have just gotten away with it. They still may. I was fortunate in that I made some connections when I started volunteering as a patient safety advocate, and did find a lawyer to take my case. However, I know TONS of people who are in exactly my same position with MICRA who never get a lawyer to take their case. Sometimes they’ll get a lawyer who will fight for 2 or 3 years until they can no longer afford to pump money into the case and they’ll just drop it, leaving the victim stranded. So don’t assume that everyone has an equal chance of getting to court because it’s flat out not true.

    And you have no idea how many people have changed their criminal minds because the death penalty is in place.


    LP Reply:


    I think I explained quite eloquently why negligent doctors don’t get sued under MICRA rules. Most cases involving fatalities ever see the light of the day because the cost of litigation is so high that the $250k limit do not cover its costs. Your revolving argument is quite simplistic, to tell you the truth. You are using your beliefs to disregards the fact that under MICRA, most cases involving fatalities never see the light of the day. Or was the doctor that caused the death of your grandparents ever disciplined?.

    I have nothing but gratitude and respect to those physicians that saved my husband’s life, and advocated for his health. Nevertheless, I have nothing but contempt to all of those who tried to nickel and dime him, who wanted to release him to a SNIFF when his wounds were so extensive that you can see his bones and muscle, who wanted to manipulate me into allowing me to release him to a nursing facility instead of acute rehabilitation where he belonged. I will be forever thankful to all those nurses that said: “under no circumstances allow that, otherwise that would amount to a death sentence”. I will be forever to the doctors who refused to sign release papers instead of yielding to the pressure of the higher ups (that by the way, were also “doctors” and “nurses” who wanted to save themselves the $5k cost of a hospital bed at the detriment of his life.

    I would like to close my argument with your comment “Every single one of them is concerned about how much more it will cost them to practice in the state of California if this passes”

    When doctors become businessmen, can they still be called doctors?. And you wonder why I hold them in so little regard


    Katie Reply:

    You still misunderstand. My comment that “Every single one of them is concerned about how much more it will cost them to practice in the state of California if this passes” isn’t about being businessmen or about being greedy. It’s about the costs of practicing medicine making it prohibitive for physicians to work. If the bills exceed the income, one cannot live. So the concern is that doctors won’t continue to be able to practice. And many of them ARE businessmen- they own clinics and they have to pay nurses and CNAs and front office staff. How can they keep their clinics open if we make them pay huge malpractice insurance premiums,

    Regardless, we’re not going to agree here.

    Lex Reply:


    I will say one thing, with a 250 cap on non-economic damages, you wont find many lawyers taking a wrongful death case. Med Mal can go on for years and 250k wont cover very much of the attorney fees and the deposition costs and the expert witnesses costs etc.


    Jo B Reply:

    @LP, Good Point LP :)


  • There is just so much misinformation in your article…I’m going to take it all, one by one.

    1. Where is your evidence that anyone tried to “HIDE” anything in this proposition? Are you really falling for the CMA’s propaganda? Strengthening this patient safety initiative with 3 ingredients that are clearly laid out, is hardly “hiding” anything. That’s just hyperbole that the opponents want to inject into voter’s minds because it sounds bad, not unlike the whole unfounded “privacy” issues that they concocted. The language of each separate ingredient has been in the proposition from day one. It is very easy to read with very simple language (unlike most ballot propositions). Nothing has EVER been hidden.

    2. I guess you don’t realize that almost ALL propositions are written by lawyers! Prop 46 was commissioned by Bob Pack, a private citizen who is NOT a lawyer. You can see his story on the yeson46.org website. I’m not sure why you would penalize his efforts because he had lawyers write the proposition. Who do you think should have written it instead? The victims of medical negligence who know little about the law?

    3. You clearly don’t know the real story behind the genesis of MICRA. It came about when ONE insurance company, Argonaut Insurance had done poorly in the stock market. In order to recoup those losses, they concocted a medical malpractice insurance scam in 1975 and the doctors all fell for it. Other insurance companies jumped on the bandwagon and the scandal was born. Legislators in the pockets of the medical and insurance industry then created the MICRA law to combat the phony problem. You can read about the phony scam in this NY Times article from 1975: http://goo.gl/Zyan5j If you want a more detailed account, you can read this awesome article by JG Preston: http://www.protectconsumerjustice.org/how-micra-came-to-be.html

    4. Let’s be clear about that “additional amount” you think people can get over the economic damages. $250,000 was established in 1975 and today is worth about $57,000. Out of that money you have to deduct all the court costs (which can run between $100,000 and $1 million) and the lawyer fees, which are capped on a sliding scale and would run about $75,000 on the $250k. That leaves about $75,000 for the victim in pain and suffering damages. But when you account for inflation, that amount is actually only about $17,000. If a victim were to live another 30 years, that would equate to about $47 a month. So if you watched Annette Ramirez’ story that I linked above, you’re saying it’s okay that living the rest of her life with no arms and legs, without the ability to touch or hold her children ever again, is worth about $47 a month.

    Would you give up the use of your arms and legs for $47 a month?

    5. Prop 46 doesn’t “quadruple” anything…that word does not appear in the language. It merely raises the cap to match 39 years of inflation with annual raises thereafter to keep it up to date. There are other states that already have million dollar caps on pain and suffering. And by the way, there are 22 states that have no medical tort reform at all, 13 of which have found it to be UNCONSTITUTIONAL.

    6. The costs won’t be passed on to consumers because there are provisions within Prop 46 that will save taxpayers money. Cutting down on all the drug abuse and abusers with the drug and CURES portion will save everyone a lot of money. Prop 46 is also meant to be a deterrent to doctors in hopes that they’ll start being more careful. The only thing that runs up healthcare costs are the doctors and hospitals being negligent. Without that element, victims can’t file and win lawsuits! The negligence is the common denominator, not the lawsuits! So if you think that costs are going to go up, you’re basically saying that you have no faith that our doctors and hospitals will ever improve and will continue their negligence at the same or a worse rate. If that’s the case, their insurance rates SHOULD go up! When we have accidents in our cars, our insurance rates go up…that’s how the system works.

    Further, the Legislative Analyst’s Office recently revised his report on Prop 46 and concluded:

    “On net, the requirements to check CURES and test physicians for alcohol and drugs would likely result in annual SAVINGS to state and local governments. The amount of annual savings is highly uncertain, but potentially SIGNIFICANT. These savings would OFFSET to some extent the increased governmental costs from raising the cap on noneconomic damages.” http://goo.gl/gWijBF

    7. MICRA was SUPPOSED to keep doctor’s insurance rates low…it never did. Here’s an article from 1977, 2 years after MICRA passed talking about how doctor’s insurance rates are still high: http://goo.gl/X1Ugrh In 2012, Insurance Commissioner Dave Jones used Prop 103, not MICRA, to lower doctors malpractice insurance rates over $50 million. It was Prop 103, which was passed in 1988 that brought doctor’s insurance rates down…MICRA never did! Here’s the insurance commissioner talking about it: http://goo.gl/xWnjdq

    8. They brought up the whole “doctors leaving California” propaganda in 1975 as well. It’s a scare tactic. The NY Times did another article and found that only 5/10 of 1% of doctors actually left the state! http://goo.gl/wGyWcJ And again, the only way doctors can charge more is if they continue to be negligent in the same way they are now.

    9. Imagine having to force doctors to use the CURES Database which tracks narcotic prescriptions. A report last week by the U.S. Centers for Disease Control and Prevention found that the use of their mandatory drug database has led to what appears to be “the first documented substantial decline in drug overdose mortality in any state during the past 10 years.”

    The CDC noted that, from 2010 to 2012, the death rates from prescription drugs fell 23 percent in Florida. The number of overdose deaths from oxycodone, one of the most widely abused prescription drugs, declined by 52 percent. By contrast, from 2003 to 2009, the number of Florida deaths cause by drug overdose increased 61 percent, with the largest increases caused by oxycodone. Along with deaths, prescriptions for powerful painkillers like oxycodone and other abused drugs have also decreased. The CDC report pointed out that in 2010, Florida had 98 of the 100 U.S. doctors who prescribed the highest quantities of oxycodone; today it has none. http://www.heraldtribune.com/article/20140708/opinion/307089999?p=1&tc=pg&tc=ar

    10. Where’s your proof that CURES isn’t ready for mandatory use? Are you blindly going by more of the CMA propaganda? Bob Pack, the man behind Prop 46 helped create the online version of the CURES database. Who do you think knows more about it? Him or the CMA propaganda masters?

    You asked where the money to upgrade is coming from…well, if you had done a little research you’d know. Our legislature approved in 2013 $1.9 million in immediate funding and another $1.5 million annually to upgrade and keep CURES running.

    You’re simply making up that it would “crash within an hour!” Did you do any research on any of this or did you choose to just blindly believe that opposition’s propaganda? You quote it almost verbatim!

    Finally, the whole “more money for lawyers” thing is totally bogus. The only way lawyers will make more money is if doctors and hospitals continue to be readily negligent, killing 1000 or more people EVERY SINGLE DAY. That’s just the people who die, it doesn’t count all the patients who are injured and live.

    Lawyers take these cases on a contingency basis, meaning they front all the costs to bring the case to court. Not many of us could afford the $100,000 to $1 million in court costs ourselves. They then take on the huge risk of losing every cent they put into the case if the case is lost, and most cases against doctors are lost (for a variety of reason, none of which is that the doctor is proven innocent. No one is proven innocent in court, they are found not guilty…it’s a big difference.) I’m grateful to the lawyer who took my lawsuit and all the risk of losing all the money he’s having to put into it, while the negligent doctor and hospital sit back and let their insurance companies throw money at their experts to get them off. Ironically, the defense attorney’s fees are NOT capped by MICRA…only the the victim’s attorneys who are trying to help people that are injured by negligent doctors and hospitals! The higher the jury verdict with the sliding scale on lawyer fees, the more money goes to the victim, not the lawyer.

    But the medical and insurance industry don’t want you all to know that, and people like Katie fall for it hook, line and sinker.

    Go to http://www.yeson46.org and read and listen and watch the stories of medical negligence and put yourself in their shoes and THEN see if you want to vote no on Prop 46. I don’t want to risk losing anyone else in my family to medical negligence, or a stoned doctor.

    Eric Andrist


    Katie Reply:

    I find it very entertaining that you accuse me of not doing research and then encourage me to do research on your website. That’s some irony. I didn’t do any of my research at the no on 46 website, but thank you for your accusations.

    You didn’t answer any of the questions I asked. You side skirted by them and pretended like they weren’t issues. That’s not adequate. I would love a straight answer on the following issues:
    1. If the cap is quadrupled (just to clarify, multiplying something by 4 is quadrupling. So 250,000 x 4 = 1 million, hence, the cap is quadrupled), do you really believe that malpractice insurance costs will not rise? And if so, which insurance companies have guaranteed this?

    2. If malpractice insurance rates increase, how will physicians recover that cost without charging patients more?

    3. How exactly does this work: “Cutting down on all the drug abuse and abusers with the drug and CURES portion will save everyone a lot of money.” I mean, drug testing isn’t free, so for starters, where does that money come from? And how does drug testing doctors earn the state money? Or using the CURES database- how does that earn the state money? And does it generate money immediately so that physicians have the money to pay for their malpractice insurance? Because I’m still confused about how they’re suddenly supposed to be able to afford insurance that carries 4 times the coverage.

    4. A comment above (or below, I’m not sure where things have fallen) states that “independent CA Legislative Analysts says it would cost CA taxpayers “10s to 100s of millions.”‘ Where is that money coming from? I mean up front, not years down the road.

    5. What is it that you do for a living Eric?

    6. Do you realize how impossible it is for anyone to ever agree with you when you sound like possibly the most condescending human being on earth? You don’t really have to answer that one, but you might want to take a step back and consider it. You made an incorrect assumption about me and when I clarified it, instead of acting like a normal person and saying, hey, my bad/sorry/oops, you said, “I can assume if I want!” You are a grown up. Maybe stop for a second and try to consider the way you come across. You want people to care about malpractice, but you can’t even treat people you disagree with with the tiniest bit of respect.

    I’m a highly educated individual. I’m not an idiot and I’m no one’s mouthpiece. I do my own research and I stand behind everything I’ve written. Just because you personally disagree with it, doesn’t mean it’s wrong. I am voting no on this proposition because it will cost consumers a lot of money, because it will cost physicians a lot of money and because it won’t do what it sets out to do. I don’t need to know more about malpractice, I am intimately familiar with it. I am voting no. Period.


    Eric Andrist Reply:

    @Katie, I DID answer your questions, you just don’t want to hear the answers because if they make sense, you should really change your stance!

    1. In this one, you have to first admit that doctors will continue to be as negligent as they are now or moreso in order for your scenario to even make sense. But I’ll play your game.

    Doctor malpractice rates are regulated in California by the Insurance Commissioner and Prop 103. If rates were to rise unjustifiably, he can control them the same way he controls auto insurance rates. Further, if only 5% of doctors are being negligent, why would insurance rates quadruple across the board? That’s like saying that everyone’s car insurance will go up because 5% of the drivers in California are having accidents!

    So worst case scenario, only the doctors who are negligent will have their insurance rates go up, as it should be. Check it out. Look at states without tort reform, you’ll see that insurance rates aren’t higher than they are in California. If they don’t have tort reform and they can be sued for multi-million dollar settlements, their insurance would have to be higher than it is in California!

    2. They could charge patients more, but who would go to them? Patients will just switch doctors, as they should if those doctors are being so negligent that their rates are going up. Further, most people pay their doctors through their insurance companies who negotiate a rate with the doctor. Most people just pay a copay. But again, it’s only 5% of the doctors who are negligent.

    3. Doctors must pay for their own drug testing within Prop 46 and it states right in the law (if you had read it) that they cannot charge those costs to their customers or their insurance. Drug testing is a preventative measure and when it is happening, a certain amount of doctors will be more careful, thereby keeping negligence costs down from their actions. Same with CURES. Drug abusers run up costs with their health problems and with the enforcement necessary to find and prosecute them. Like in Florida where the drug rates have dropped drastically, that will also cause enforcement costs to drop drastically as well as the judicial costs to prosecute and jail these abusers. They also end up in free clinics when they get sick and so those costs will drop.

    You might want to take a course in insurance if you’re so confused.

    4. I didn’t write that, I don’t know what you’re referring to.

    5. I worked for 20+ years in theatrical production which I gave up to care for my disabled sister for 10 years…until she died of medical negligence. I’m not a notary public and Live Scan Fingerprinter.

    What does that have to do with anything?

    6. No, I don’t know how impossible that is. I have these discussions several times a day online and you’re the only person that’s ever said that to me. How awful it must be for you that you can’t have a conversation with a condescending human being. It’s just words…why do you give them such power?

    It wasn’t too far off base that I assumed something about you, as I said you never mentioned it in your original article…which would have been important to do so considering the topic.

    Perhaps you should look in the mirror and take stock of how YOU come up as well. You come to a blog and act like a know-it-all about a topic you clearly know next to nothing about. People chimed in to correct you (other than me) and you jumped down their throats…and were still wrong! That’s not respectful!

    You ARE someone’s mouthpiece because you’ve relayed the opponents propaganda almost verbatim. Are you saying it’s a total coincidence that you came up with almost the exact wording????

    It will NOT cost consumers a lot of money and you’ve yet to show any real evidence that makes sense, as to how you come to that conclusion. It’s people like you who endanger patients with their uneducated decisions. Period.


    Katie Reply:

    @Eric Andrist, I would like to start by very seriously saying that if I have “jumped down” anyone’s throat, yours included, I am quite sorry. I disagree that I am wrong (because this issue is not a black/white right/wrong issue for the most part), but I have never intended to be anything but respectful with my discourse.

    1. Let’s say you call up your car insurance right now and say, hey, I’ve decided I want to carry 4 times the coverage in case I’m in an accident. Do you think that your premium would be unchanged, even if you are a good driver? It won’t. That’s what I’m talking about with increased malpractice insurance costs. It’s not about being a negligent or non-negligent doctor. All physicians will see a hefty increase when they suddenly have to have coverage at 4 times their current rate. There is no way that this will only impact negligent doctors. I don’t know if you don’t understand this or if you are willfully ignoring it, but it absolutely, unquestionably will cost physicians more money for them to practice. They aren’t getting a pay raise to compensate for this, so it will be financially straining.

    2. The report you cited above actually does a great job of listing a few ways that the costs will be passed along, let me just quote it for you. “…higher medical malpractice costs are generally passed along to purchasers of health care services. In addition, we assume state and local governments will have net costs associated with changes in the amounts and types of health care services.” So, the government will pay more as well. From where? There’s also an excellent comment below about how physicians will have to being practicing more defensive medicine, which will cost consumers more in the long run. Simply put, raising the malpractice cap will cost taxpayers and it will cost patients more. That report says that even if the increase is small in percentage (.05%) it will cost, “tens of millions of dollars to several hundred million dollars annually.” So. Help me understand how this will save money? The report concludes the CURES, which even the report acknowledges won’t be ready until 2015, could offset SOME of the cost. It will still cost California a lot of money.

    3. I read the prop, I just wanted you to say that physicians were once again paying for this proposition. Also, if you read carefully you should see that I like CURES. CURES is great. It’s just not ready for mandatory use in November. Your non-partisan report agreed.

    4. Sorry, just wanted your opinion.

    5. It doesn’t have anything to do with anything. I was simply curious what your background was in.

    6. As I said before, I never intended to come across rudely and the point of this post was to clarify a lot of the smoke and mirrors being propagated by your side. There are huge costs that you are skipping right past. I didn’t feel like flaunting my personal experience with medical malpractice because it is not pertinent to why I’m opposed to this proposition, nor should having been personally touched by malpractice be a requirement for being compassionate to those who have experienced it. I am no one’s mouthpiece, I wrote this of my own free will, after doing my own research and discussing it with multiple physicians who have experienced this in other states.

    The report you linked (did you read it?) concludes that the costs will be in the millions of dollars, yet you say that it won’t cost Californians money. This will be costly to Californians. It will increase malpractice lawsuits, not because more malpractice will occur, but because it is incentivized for lawyers and patients. It will force physicians to practice medicine differently, which does not mean better. It will cause physicians to pay more, patients to pay more and the government to pay more. There are better ways to reduce malpractice than this proposition and anyone who is not primarily interested in litigation and the payout associated should be able to see that.

    Jo B Reply:

    @Eric Andrist, YES on Prop 46 ! :)


  • LP:


    We won’t be able to change your mind and that is OK. After all, you are free to do what you will with your vote.

    The only courtesy we ask, as victims, is to use numbers and real facts before further spreading misinformation. If you are as knowledgeable as you state, you would have given more hard facts than you repeating ad-nauseaum “cap quadruples in price, therefore, premiums will do as well”. Insurance rates are simply not calculated that way, as Eric well explained, with facts and figures.

    I am very sorry that your grandparents were victims. I am certain that those doctors responsible will continue to inflict harm, just as I am sure that those who harmed my husband will in the future. We have to thank MICRA and the California Medical Board for that.

    The difference between you and me, is that I don’t accept this as the status quo.


  • Doctor:

    The CURES database and Prop 46 are counterproductive. Doctors do not overprescribe because they are lazy. They overprescribe because they are scared. Scared of being wrong, and at the same time scared of being sued. Sure, this patient has come to the ED 4 times this month for pain medication. The CURES database says she’s been to two other EDs. Now I can: 1) say this patient is abusing narcotics, not prescribe them, and risk being sued to a now much higher total for pain and suffering, or 2) with the fear of a lawsuit, prescribe or give the medication (like many to most ED physicians would), and risk penalty for overprescribing CLEARLY a drug abuser. Physicians face decisions like this every day. Every day we see patient’s that appear to be gaming or abusing the system, but we can’t call them out, because if we are wrong, or, more likely, the patient is gaming the legal system as well, we are placing ourselves at a huge financial risk. The risk would be even higher with Prp 46.

    Additionally, Prop 46 would pass the cost along to the patient. It’s called defensive medicine. And it is dangerous. Due to fear of lawsuits, it would mean more MRIs, more days of IV antibiotics, more pain medications, more drugs, more scans, more, more, more. Also, it would lead to more days at risk of acquiring an illness in the hospital, more risk from sedation medications for the scans, radiation from the scans, etc. It is a lose-lose situation propagated by fear. So when you wonder why your physician won’t discharge you from the hospital, or you get your MRI bill for $300 or $500 or $700 dollars, and then your physician orders another one in 6 months, ask yourself if you feel better because pain and suffering can now make somebody 1.1 million dollars.

    None of this addresses the impact of the cost of medical malpractice insurance. To me, that is not the definitive issue. Insurance prices suck, they always will, and this will make it suck somewhat more. The big detriment isn’t the medical malpractice cost, but the cost to practicing medicine.


    Jo B Reply:

    @Doctor, They Over Prescribe because they are Scared.. fear of lawsuits..lol Really? You may buy into the scare tactic but putting the scar tic on We The People that prices are going to go up for us is Not working on me as I already know Prices will go up no matter if this passes ot not.. Im Voting YES on 46 :)


  • dg:

    I am a California emergency physician who has the responsibility of quality assurance in my hospital and there is a perspective I’d like to share.

    First of all much of the discussion seems to assume that there are evil physicians out there who are careless and don’t care if they caused harm. Consequently this bill is intended to punish this minority and leave the vast majority of good doctors alone.

    I can assure you I have never reviewed a case in which a physician intended harm. What most laypeople don’t understand is that any medical treatment carries risk and positive outcomes are never guaranteed. Our goal is always to balance risks with benefits.

    I am not aware of any other profession in the United States, including law, that requires as much education and training as medicine (4 years college at the top of your class + 4 years medical school + 3-7 years in residency training) nor licensing exams (USMLE Steps 1, 2, and 3, then board certification exams both written and oral. When that is all done, there are annual exams, continuing medical education, and every 10 years a board recertification exam. This is all to practice anywhere in the US. Then comes licensing in California, which requires reams of paper, references, background checks, fingerprinting and takes many months. Medicine is perhaps the most difficult profession to prepare for and California is widely regarded as the most difficult state to get a medical license.

    So what does this all mean. We are very well trained, very well screened, and our education and testing never ends. It does not mean that all doctors are perfect, in fact none of us are perfect. We get tired, angry, frustrated, overworked working and complex problems with incomplete information, so just like other humans and unintended errors from time to time are inevitable.

    Great effort is always being spent to identify the sources of medical error and minimize them and we are making progress. Serious errors are really quite rare in our hospital. Unfortunately, the medical malpractice industry expects perfection, and sadly, for some malpractice attorneys, presents an opportunity to capitalize on another’s misfortune.

    Perhaps it would all be worth it if some of this money somehow went back to medical research and quality improvement to help us find ways to minimize errors but it doesn’t. This, after-all, is how malpractice attorneys make a living, and 50% fees on a 1.1 million aawrd is a good days work. And this crazy punitive system creates an environment where physicians are afraid to admit errors and give the rest of us a chance to learn from them and prevent them going forward. The FAA figured this out long ago.

    Finally, there is a perception that all med mal suits that are brought have merit, that the doctor must have done wrong. The cost of defending any claims are so high that insurance companies may choose to settle even an absurd claim rather than expend any legal fees to fight it. Indeed, that may have been the hope of the plaintiff’s attorney all along, since they knew that it had little chance of success in front of an actual jury. Expensive liars dice isn’t? I suppose I wouldn’t care if that money just changed hands between insurance companies but there are also rules that require these awards to be reported to a national doctors databank, which punishes a doctor who did nothing wrong, and of course raises their insurance premiums.

    Unfortunately Prop 46 and it’s reversal of MICRA will not improve patient safety, will not selectively punish “bad apple” doctors and leave good, hardworking conscientious doctors alone, and will not encourage doctors wishing to practice in California to leave states that are enacting legislation that duplicates the success of MICRA. Prop 46 is a gamble that further raises the ante doctors must pay to take care of patients in our wonderful state. Raising the potential pot of money will certainly encourage more lawyers to play poker and make patients no safer.


  • LP:

    So doctors, how can you justify that under the current system, not only poor physicians are not sued, but not even touched by the CA Medical board?. Right now there is absolutely NOTHING that can be done to discipline a poor physician. It was so bad that the legislature threatened to shut it down. The MICRA rules have done little to improve patient safety.

    Doctor’s don’t get in the business of being doctors because they want to harm patients. On that we both agree. But just because you don’t have intent, it doesn’t mean that you are not responsible, and if there are catastrophic injuries incurred, there should be monetary compensation for the victims. EVERY OTHER institution plays with those rules. EVERY citizen plays by these rules. You talk about the FAA: every time there is a plane crash, regardless of fault, monetary damages are awarded to the victims.

    Physicians believe they are above the law, because they study a lot, because they have tons of student loans, and they don’t mean to do harm. This is not enough justification for a victim. After all, if I run someone over by accident, just because I did not mean to, it does not mean that I should not face the consequences of my actions. That’s why you should carry liability insurance. To at least have the decency to try to correct a wrong.

    BTW, the example that was listed about pain medications is a clear example of how the CURES database would work wonders to prevent prescription abuse. In regards of your fear of being sued, I would like to define medical negligence for you: it is an error made when the physician acts BELOW the standard of care. To refuse pain medication to a patient that is evidently shopping around would be WITHIN the standard of care, and therefore you will NOT be liable, as you have a great paper trail to support your medical decision. So fear not, my friend.


    Katie Reply:

    @LP, Can I ask you an honest question? Would you support this proposition if contained everything except the the MICRA cap increase? If it forced physicians to be drug tested, to report suspected drug/alcohol abuse, if it punished physicians who were abusing drugs/alcohol, it if mandated the CURES database, but kept non-economic damages to $250,000?


    LP Reply:

    @Katie, I definitely would, as it would be a step in the right direction.


    dg Reply:

    LP..I’m afraid we don’t agree on much…

    1. The Medical Board is powerless to discipline poor physicians? Perhaps you and I get different quarterly newsletters from the Board. My version lists about hundred physicians who have been disciplined each quarter. But don’t take my word for it. See JAMA. 1998 Jun 17;279(23):1889-93.

    2. I review lawsuits every month. Poor physicians do get sued as they should, but so do many good ones.

    3. The FAA has created a blame free error reporting system which enables them to gather data and engineer solutions. This has made possible incredibly safe air transportation. (http://www.faa.gov/news/press_releases/news_story.cfm?newsId=10654)

    Med mal liability has the opposite effect by creating a punitive system that discourages open reporting. (http://overflowingbrain.com/2014/07/31/voting-proposition-46/comment-page-1/#comment-32598)

    But yes you are right about law suits from plane crashes..which is why Cessna, Piper and many others got out of the business of making small planes years ago. It appears that liability reform may help revive that industry http://www.freepatentsonline.com/article/Transportation-Journal/17572867.html

    4. I use CURES about 5 times per day. It’s useful but it does not list prescriptions filled within the last 3 weeks or so. It also doesn’t tell you when someone is giving a false name. So it is no panacea, but I would support it’s more widespread use. Incidentally, did you know that Medicare is now withholding payment if a person doesn’t feel that we treated their pain sufficiently? We are damned if we do and damned if we don’t. Fortunately Feinstein and Grassley are looking into this. (http://www.feinstein.senate.gov/public/index.cfm/2014/6/grassley-feinstein-explore-any-link-between-medicare-patient-surveys-opioid-abuse)

    Finally, you are conflating reasonable caps on non-economic damages (which Prop 46 seeks to quadruple) as an attempt to “be above the law”.

    I never suggested that physicians should not be held accountable, just that not every unpredictable event in medicine should be an excuse for a payout. This only increases the cost of care for everyone.

    Though I’ve never been sued, heaven forbid, I still pay tens of thousands of dollars per year for coverage I hope to never need. At the same time 40% of the patients I see are charity cases which means I am donating my time and I am paid nothing. Of course they have every right to sue me if I make a mistake.

    It’s 2 am and I just finished another hard shift taking care of people no one else will see. I hardly feel exempt from any laws.

    Bottom line: If a patient is harmed there is nothing in current state law that prevents them from seeking significant restitution including millions in economic damages and $250K in non economic damages. If these suits don’t happen enough to your satisfaction, which I presume is the case based on your support of Prop 46, perhaps the problem isn’t the liability cap itself, but it’s failure to make it worth a lawyers time.

    They apparently have less time than I do for charity work.


  • LP:


    To your comment:

    1. “My version lists about hundred physicians who have been disciplined each quarter”. I wonder what does that discipline entail, if their license is revoked or restricted, or if it just a slap in the hand. I know of many victims through Prop 46 who have been victims of blatant, extremely poor practice, and the doctors still practice without any repercusions. In fact, in my husband’s case, even the arbitrator found the doctor below the standard of care. Response from my complaint to the CMB?. Just a letter saying that they received the complaint. Nothing further, nothing else.

    2. “I review lawsuits every month. Poor physicians do get sued as they should, but so do many good ones”. Even a good physician can act below the standard of care, and if they severely harm a patient, they should be responsible for this.

    3. “Medical liability has the opposite effect by creating a punitive system that discourages open reporting”. Liability in general, creates a system in which people are afraid to report issues. REGARDLESS OF INDUSTRY. Only the fear of damages is what makes them act. Again, why do you think GM is doing all these recalls when the incidence of deaths is so low?. Because they are afraid of litigation. And hospitals should be held to the same standard. I find it ironical that you complaint about transparency, while opposing a proposition that would make it mandatory for nurses and doctor to report physicians for suspected substance abuse?

    4. It is no panacea, but for the majority of patients, who have to give an ID and insurance card, there are sufficient safeguards in place to avoid over prescribing medications, as this type of system has proved successful in other states.

    5. “I never suggested that physicians should not be held accountable, just that not every unpredictable event in medicine should be an excuse for a payout. This only increases the cost of care for everyone”. Again, medical negligence is defined as an error caused BELOW the standard of care. If a patient dies because of an inherent risk of a procedure, that would be WITHIN the standard of care, and it would be extremely difficult to find representation for this outcome. However, if a patient dies because the doctor made a mistake because he was BELOW the standard of care (being drunk, not reading his chart and giving improper medication, leaving instruments and gauzes behind) only THEN, they would be accountable.

    6. “But yes you are right about law suits from plane crashes..which is why Cessna, Piper and many others got out of the business of making small planes years ago”. And rightly so. You can see that the incidence of crashes for those planes is extremely high compared to other manufacturers. Public safety policies doing what it should.

    7. “I still pay tens of thousands of dollars per year for coverage I hope to never need”. I own a very high risk business, and I also pay ten of thousands of dollars in liability coverage I hope I will never need. I improve my protocols to reduce risk and error. However, what is different from you and me is that I understand that carrying this insurance is a good policy for both myself and my clients. You seem to resent the fact that you are asked to carry it if God forbid, you ever make a mistake and your patient is left severely disabled or dies because of this mistake. You seem to believe that because it is not intentional, you should not be held accountable. See why it comes across as being above the law?

    8. “Incidentally, did you know that Medicare is now withholding payment if a person doesn’t feel that we treated their pain sufficiently? “. Medicare needs some serious re-haul, as there is a big incentive for physicians to over-treat patients as they are paid by procedures and not outcomes. However, this is a different battle, and physicians should

    9. “At the same time 40% of the patients I see are charity cases which means I am donating my time and I am paid nothing. Of course they have every right to sue me if I make a mistake”. You are conflating two different issues, health care coverage and medical malpractice. A lot of the patients you have have no coverage because there is no political wherewithal to either expand coverage of Medicare, or allow undocumented immigrants to purchase insurance through exchanges. If you care about this, I hope you really acted in favor of health reform, that way you should never work for free.

    However, if you make a NEGLIGENT mistake that kills or mains a patient -regardless of ability to pay- , you should be held accountable. Or is justice only for those who have the means?


  • LP:

    Last comments about how well disciplined these doctors were:



    In fact, during litigation, it was found that one of Kaiser’s experts (the one for internal medicine!!) had settled two malpractice suits due to failure to diagnose, but still he was practicing and acting as a medical expert!. So there are your repercussions and discipline that you so much talk about.

    As a last comment, you all seem to believe that all victims are after money. Believe me, nothing farther for the truth. 10 million dollars won’t give me my husband’s hands and feet, or his ability to run and walk. It breaks my heart that my husband, a former athlete, is reduced to this, only because the hospital wanted to save a buck. The same goes for every single victim that we have personally met. So much suffering so easily avoidable.

    What enrages us is the indifference and disregard that doctors and HMO’s have for these cases. Most of us tried to work with them to properly report and hopefully led to improvements. I had enough on my plate to add litigation to it. However, in my personal case, after reporting the deficiencies that we had to Kaiser member services no later than 6 weeks they were giving the same horrible advice to my dad -stay home- when he had pneumonia and was already septic. Just because they wanted to save a buck.

    We have found through our ordeals, that HMO’s only understand the language of money, as this is the only thing they care about. Doctors, who work for them, have to work under their rules, as they have enough on their plate already (student loans, long hours, under staffing) or have a vested interest (Medicare payouts) to push for change.

    I am not naive, there will be costs to Prop46, as they were when car manufacturers were forced to put seat belts, DUI laws were enacted, or the clean water act was implemented. Nevertheless, these were wise investments in the long run. That money was well spent, as the fatalities and environmental damages avoided were enormous, and society was better for it. The same goes for medical litigation.

    This is a complex issue, and American Health care system is one of the most poorly run in the world, in terms of costs and outcomes. However, data shows that medical negligence amounts to a minuscule part of the pie, where other factors can reduce far more significantly costs for patients, making it more affordable (so poor doctor doesn’t have to work for free). If you really care about costs, act accordingly!. Push legislators to use single payer, improve Medicare (not only to your benefit, but society in general) or make medical school more affordable for students, as is the case in other developed countries such as Germany. If you care about the victims of medical negligence, include them in the conversation and don’t simply tell them to suck it up (which is pretty much what MICRA does to the families of those who die). Create malpractice funds (similar to vaccine funds) so real victims can get some compensation to offset the terrible costs associated with malpractice. Right now, we don’t even get “I’m sorry”


    dg Reply:


    Oh, and I like your reference to Germany. Couldn’t agree more that we would do well to emulate Europe when it comes to health care.

    Their liability caps? 250K to 500K



    LP Reply:

    @dg, Agreed, but most medical costs are covered through their health system. I have to pay close to $50k/year in out of pocket costs for my husband, and believe me, it could have been far worse.


  • dg:

    Dear LP, Thank you for the comprehensive replies.

    I hope I didn’t sound callous toward harmed patients earlier, it was not my intent. My heart goes out to you and others who have been harmed and all deserve to be compensated and future events must be prevented as much as possible. I believe this is what MICRA already does, with what I consider a fair stipend to attorneys that handle your case. (40% of first 50K + 15% thereafter). See (http://www.sos.ca.gov/elections/vig-public-display/110414-general-election/prop-46/prop-46-leg-analysis.pdf)

    However in the case of Kaiser, as I understand it, patients who enroll agree to use arbitration rather than the court system presumably in exchange for lower cost coverage. So Prop 46 or MICRA for that matter does not apply to Kaiser members even though the Pack tragedy involved a reckless Kaiser patient and, as the proponents contend, KP physicians for that matter? Please correct me if I’m wrong.

    True, I am conflating our messed up medical care system with medical malpractice. I don’t mean to go off topic but in the big picture I think they are linked, and this is what concerns me most about 46.

    I already use CURES for selected patients (registration is onerous and requires notary etc and my reward is lower patient satisfaction scores from those I refuse narcotics) and I don’t use drugs so, other than being a bit insulting, the other parts of 46 shouldn’t bother me much. However, section 11165.4 (b) (http://www.sos.ca.gov/elections/vig-public-display/110414-general-election/prop-46/prop-46-text.pdf) requires me to check every patient I see, including 90 year old grandmothers and this process takes about 5 minutes. One must log in with a particularly onerous password, type in first and last name, gender, and date of birth in a specific format then several more clicks I’ll get a print out. Since I see over 30 patients a day adding up to over 2 hours per day of work not taking care of patients. Moreover, 11165.4 (a) forbids me from writing a prescription for someone who has an “existing prescription”. I’m OK with that except it takes about 3 weeks for prescription data to show up on CURES so how am I to know if they have an existing prescription?

    I work in the safety net of the safety net. Our health care system desperately needs fixing and I voted for the ACA as a step in the right direction, but my major complaint is that it is not single payor. As it turns out most of the new enrollees are new Medi-Cal patients and my hospital tells me that they lose money with every medi-cal ER visit, as California ranks 51th in the US for per capita Medicaid reimbursement (http://kff.org/medicaid/state-indicator/medicaid-payments-per-enrollee/) even before last year’s 10% cut. (http://www.cmanet.org/news/detail/?article=dhcs-to-implement-10-percent-medi-cal-cuts-in)

    But I chose the only medical specialty that will treat anyone who comes in the door regardless of ability to pay and I’m honored to do so. Indeed my most gratifying cases are when I have the opportunity to help someone who has no where else to turn.

    We sound similar. You own a high risk business and carry expensive insurance. Like me, you are doing everything you can to reduce risk but we know that it is impossible to completely eliminate risk. That’s why we wisely carry insurance, mine for up to 3 million. So let me ask you this? How long could you keep your business running if your clients don’t pay you, particularly if your risk of liability increases?

    Many ER’s in this country have learned not very long and this hurts people. (http://content.healthaffairs.org/content/33/8/1323.abstract)

    As the cost of a medical practice continues to climb, and reimbursements continue to drop, there are already too few primary care physicians willing to see these new ACA patients and we all will wait longer at the few ERs remaining.

    I suppose my biggest issue with Prop 46 is its attempt to capitalize on a tragedy. Originally conceived in response to that horrible event when we lost Troy and Alana Pack, it is not clear to me how MICRA got tied into that. The driver of that car broke the law, was morally reprehensible, and should be punished to the fullest extent. So should every drunk driver and every impaired physician for that matter. Prop 46 does little to add to that.

    Yes, using CURES (redundant in the case of Kaiser because they already have a prescribing database of every member) ideally could make a difference. But how would higher medical liability caps have prevented that event? Would drug testing of hospital affiliated physicians (Prop 46 exempts the many physicians who are not affiliated with a hospital) have prevented that event? By the way prop 46 only requires testing AFTER something bad happens. Perhaps this might be a deterrent from drinking and doctoring but our experience with serial drunk drivers tells us this is hardly a preventive measure.

    Let’s not let this tragedy morph into gift for trial lawyers, instead lets focus on more productive ways to protect patients and the public and keep our fragile health care safety net intact. (http://www.iom.edu/Reports/2006/Hospital-Based-Emergency-Care-At-the-Breaking-Point.aspx)


  • LP:

    The issue with the cap dg, is this, as I explained to Katie far above on the thread. Simple economics. I will use my husband’s as an example, as I am well versed on the costs involved in the case.

    Let’s put two scenarios:

    First Scenario: Husband lives – but is left severely disabled:
    Value of the case:
    Pain and suffering: $250,000
    Loss of wages: 45% of 150k/year (rest covered by disability and SS benefits) until
    patient becomes 65. Total: $1,800,000
    Medical costs: Caregiver 24/7 at $16/h until end of life (aprox 80): 5,100,000.00
    Prosthesis: $800,000.00
    Medical insurance: $600,000
    Reconstructive surgery: $1,000,000
    Pain and suffering: $250,000
    Loss of consortium: $250,000
    Loss of wages: Covered under CA PFL
    TOTAL VALUE OF CASE: $10.1 Million

    Second scenario: Husband dies
    Pain and suffering: $0. Patient is dead, therefore, there is no claim.
    Loss of wages: $0. Patient is dead, therefore, he is in no position to work anymore
    Medical costs: $0. Patient is dead, therefore, he is no longer needs medical care
    Pain and suffering: $250,000
    Loss of consortium (normally payments are below the pain &suffering limits): $250,000
    Loss of wages: Covered under CA PFL
    TOTAL VALUE OF CASE: $500,000
    HOWEVER! if husband happen to carry a life insurance policy with company A, loss of

    consortium would be $0, as company A would be responsible for it. It would be left for
    company A to litigate against Kaiser for these losses.
    To litigate either case, a plaintiff’s attorney would need to incur in the following:
    Arbitrator: $550/h x 8 h x 20 days= $44,000 (as is split 50-50 with defendant)
    Transcription services: $60/h x 500 h = $30,000
    Paralegal cost: $50 x 200 h = $10,000
    Expert testimony: $1,500/h x 100 h= 150,000

    Total cost of litigation: $234,000. The plaintiff’s attorney needs to spend all this money, regardless of outcome. He loses, he does not only makes zero, but also has to pay all these costs out of his/her own pocket.

    This is why many poor practitioners are left alone, as the discovery process is extremely expensive and impossible for a patient to do on his own. The CMB is an extremely poor venue to pursue justice, as doctors hate testifying against other physicians, regardless of how justified the case is. Joint commission and department of managed care?. Give me a break. I am still waiting for a courtesy call back.

    This case won’t do anything for me, after all, as you well mentioned, Kaiser has arbitration rules that are completely skewed on our favor. But, passing the cap increases will make Kaiser think twice about keeping poor doctors on the job. It will make it hard for a physician to turn a blind eye to that colleague that has substance abuse. To this date, my husband’s doctor still practices without no disciplinary action, neither through Kaiser or the CMB. No wonder why she was chuckling throughout the whole trial.


  • LP:

    BTW, I wanted to thank you for your courteous response. I appreciate the efforts that you and other physicians made in helping those in need. I have nothing but the utmost respect to ER doctors, after all, thanks to one of them, my husband is still alive, as he was able to accurately diagnose him and admit him almost as soon as he set foot in the ER. I am happy that I had the opportunity to thank him in person yesterday afternoon -and yes, he was a Kaiser doctor.

    I understand the fear that anyone has about being sued. I fear being sued. And believe me, it is extremely easy for me to get sued – far easier than for a doctor-. I do my best. And though I get paid, which is different from your case, even the shadow of negligence would send me out of business with a snap of the fingers. Welcome to the world of owning a pre-school :-).

    Nevertheless, if I do a breakdown of the cost of running my business, liability insurance is a small expenditure compared to payroll, consumables and other expenditures. The premiums paid in state with caps are no significantly lower than the states with no caps. What most doctors fears is the possibility of the process becoming easier for victims, and that’s what I have a problem with. Investigating any medical negligence case is an extremely difficult and tortuous path. I am glad that I was able to find representation and at least have the certainty of knowing what happened to my husband, but other patients do not have that satisfaction.

    Finding representation for a case worth $10.1 million dollars was not a walk in the park, even though we had the fortune of having an excellent paper trail, and available and undisturbed medical records (I pulled them shortly after my husband set foot in the ER). We were rejected by three attorneys, who thought we had a medical negligence case, but that it was difficult to win. Our last attorney was an honest an diligent man, courteous with the plaintiff and all those involved. He spent close to $150k of his own money to get justice for us, even though it would have been easier for him to quit. I cannot say the same about opposing counsel. Thankfully we were squeaky clean in our pasts, otherwise, I cannot imagine how our reputations would have been trashed throughout this ordeal.

    So, the fear of being a recipient of a medical negligence suit does not match the reality of actually filing (and prevailing!) in a medical malpractice suit. Unfortunately those fears make doctors close ranks with those same malpractice insurance companies that are gouging them dry.


    dg Reply:



    I think it’s clear there are no winners when it comes to medical errors. The best possible outcome is preventing bad outcomes. Education, root-cause analysis, and accountability all play a role.

    Best regards


  • […] Read the rest of Katie’s post on her blog Overflowing Brain. […]

  • Jenny:

    These are exhaustive comments. I agree NO on this issue but come to terms with something more acceptable. I never understand why such brilliant minds can’t meet in the middle or figure out a better way. Instead if wasting time arguing why not write a better plan?


  • Richard:

    The surest way insurance companies defeat a sound bill is to say medical costs will go up and or drs will leave the state. Although there are no facts to justify this whatsoever. Increase in insurance caps does not equate to an proportionate increase in costs. For example I raised my UM coverage on my car insurance from 15k to 100k which cost me an extra $70 a year. The fact is medmal is the 4th leading cause of death in the Us behind cancer heart disease and smoking. Up to 500k people will die. And in CA all you would get is $250K–an amount set in 1975 when a house cost $50K to buy. There are also atty fee caps in place which adds the reason why so many cases are turned down by attys. it’s simply not worth it. As a result drs are not kept in check bc they know hardly any suits will be brought against them. Drs are human and make mistakes. Too bad they think they’re better than most. Prop 46 has my vote.


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I'm Katie, a 30-year-old, wife, mom, former teacher-turned PT, who also had brain surgery in November of 2007. This blog chronicles my daily life, from mundane to crazy, often with far too much detail. Sit down, get comfortable and stay for a while.
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