The Center for Justice & Democracy has worked with many families and individual patients who have traveled to Washington, DC and state capitols to oppose so-called “tort reform” laws. For their trouble, we have personally witnessed victims being heckled and insulted by doctors to their face. It is not easy for patients who have lost a leg, their eyesight or a child to continue hearing from medical lobbies that they – victims who file claims – are the problem, as opposed to the medical negligence that caused these tragedies.
Doctors are not supposed to be cruel people. But sometimes they are.
In 1975, California doctors decided to try to bring down their insurance rates by focusing not on the insurance industry but rather on patients who have been killed or injured. Medical and insurance lobbyists pressured the legislature to pass the Medical Injury Compensation Reform Act, or MICRA, which among other things placed a hard $250,000 cap on non-economic compensation for malpractice victims. (Learn more here.) The California legislature has failed year after year to raise this cap simply to keep up with inflation.
So this week, consumer advocates stepped in as they always have, filing over 800,000 signatures to place the Troy and Alana Pack Patient Safety Act of 2014 on the California ballot (“named for Bob and Carmen Pack’s two young children who died in a car crash in 2003 … after a driver who was overprescribed pain killers fell asleep at the wheel and lost control of her vehicle”). This voter initiative would do two main things: it would “require physicians to undergo random drug testing, use the existing prescription drug database to curb doctor-shopping drug abusers,” and it would raise the MICRA cap, at least allowing it to keep up with inflation. Said Jamie Court, the executive director for Consumer Watchdog,
[This is] modest reform in the face of thousands of deaths due to negligence. In a recent example, Court said a cardiologist in Fresno left his 72-year-old patient on the operating table to go out to lunch. The patient is reportedly in a permanent vegetative state.
“Legislators have had years to make this change,” Court said. “If there is no proper legislation for patient safety, then the people will make the change.”
Parents who lost children due to questionable medical practices said they backed the law not for the money, but to hold bad physicians accountable.
Alejandra Gonzalez of La Puente said her infant daughter Mia began coughing hard back in 2013. She took Mia to Fountain Valley Regional Medical Center where doctors said her baby was fine. But the cough only worsened. Gonzalez said she returned with her daughter every day for four days and no lab tests were taken. Mia died of whooping cough on the fifth day Gonzalez took her child to the hospital. She said the doctors should have known better.
“This happened when there was a whooping cough epidemic in 2010,” Gonzalez said. “Isn’t that malpractice?”
We learned long ago that there was never any basis for this cruel law. It was enacted during this nation’s first liability insurance “crisis” when doctors and others were hit hard with skyrocketing insurance rates. Insurers quickly blamed what they believed was occurring in the country – a “litigation explosion.” They demanded huge rate hikes from state regulators and convinced California lawmakers that the only way to bring rates under control was to limit the legal rights of injured victims. It was then that insurers learned that state regulators would give away the store in rate increases. They also learned that they could easily take political advantage of the situation by asking lawmakers to limit victims’ rights.
Yet there never was a “litigation explosion.” After insurers abandoned the medical and product manufacturer lines, the federal government decided to review the situation and not simply accept the insurer’s assertions that litigation was “exploding.” Their research immediately found that data was not available to answer this question. Insurers clearly had no such data. Therefore, working with the National Association of Insurance Commissioners (NAIC), they undertook a closed-claim study and here’s what they found: there was no “explosion” of claims and there was no justification for the insurer actions. The group concluded that the insurers had panicked from lack of data. They reported back to the White House that the problem seemed attributable to insurer economics and negotiated with the NAIC to create a new medical malpractice line of data in insurers’ Annual Statements to enable them to monitor the situation over time. (See more here.)
But by then, the political lessons learned by the insurance industry were clear: by blaming lawyers and litigation for a crisis that the industry itself had manufactured, the industry could obtain major changes in tort laws – basically, gravy to their bottom line. Their clients – businesses and doctors – were more than happy to go along. It is a political strategy that worked in the 1970’s, and carried them through the next 35 years. It is a strategy that the Supreme Court of Florida recently slammed, overturning that state’s $1 million cap as an unconstitutional violation of Equal Protection.
Dr. Richard Thorpe, president of the California Medical Association, responded to the ballot initiative by saying “This initiative is bad for patients, bad for taxpayers, and bad for California’s entire system of health care delivery.”
As I said, doctors are not supposed to be cruel people. But sometimes they are.