Politics is really not an area I get involved in much, however with Proposition 46 I feel t is important to voice our opinion about why I feel this should pass. To date countless TV ads have been published, which twist and spin 46 as an attack against healthcare. However, this is the furthest thing from the truth. In order to fully understand the medical malpractice element of proposition 46 voters need to understand what the current landscape is like.
Medical Malpractice and Patients Rights Today
Medical malpractice occurs when the physicians actions fail below a certain level. In other words when they fail to meet their standard duty of care, they would be considered negligent. However, unlike any other professional physicians and doctors are given very specific protections. These protections help doctors, but do very little for patients and protection of their rights
For example to file a medical malpractice lawsuit in California, your claim MUST be filed within 12 MONTHS from the date of the accident. This is different than your regular personal injury lawsuit, which affords you 2 YEARS from the date of the accident to file suit. While one year does seem like a sufficient amount of time, it is not. Most of the time it can take months to retrieve records and find a qualified attorney willing to take on your case. Additionally, many attorneys will not want to get involved in a case where the statute of limitations is close to running.
Additionally, today medical malpractice benefits have specific caps on the PAIN AND SUFFERING element of your claim. Pain and suffering is capped at $250,000.00 for all medical malpractice causes of action. While, this may seem like a lot of money for someone who is lightly injured it is nothing for someone who has suffered a catastrophic injury. In cases where you have a wrongful amputation, brain injury or any other serious injury the limits for your pain and suffering recovery are $250,000.00. This amount also applied in wrongful death cases. In fairness it is important to point out that there are no caps on loss of income and future medical expenses.
Moreover, medical malpractice is also unique in the sense that attorney fees are also limited. These limitations along with the pain and suffering caps are the precise reason why many medical malpractice cases are regularly turned down by attorneys. Attorney fee caps on medical malpractice along with the other provisions are a systematic effort to reduce and prevent injured patients from pursuing a claim for damages suffered at the hands of a doctor.
It is easy for insurance companies to paint a picture of attorneys as greedy, but the reality is that these protections are exclusively unique to the medical professions. These safeguards are nothing more than an effort by the medical professions to protect themselves for liability, regardless of their degree of negligence. Imagine, these limitations existed for your accountant when he failed to report your taxes accurately or when your attorney fails to file your claim on time. In fact no other profession carries these types of immunities, particularly when they have so much at stake.
It is also important to note that much of these caps and limitations were put into place under the MICRA caps in the 1970’s and were NEVER adjusted for inflation. Much of the adjustments which are not being asked for are a result of a non-inflationary adjustment, which insurance companies and physicians are not willing to grant. To give you perspective on this, in 1975 when these caps were put in place gas was 57 CENTS a gallon
What Will Proposition 46 do for Patients Rights?
Random Drug Testing for Doctors
Random drug testing for doctors will be a provision in this new law. It will provide for random drug testing for doctors. This is particularly important when you have physicians or doctors who are constantly around prescription pain medications and other controlled substances. Additionally, this is even more important when you consider the number of doctors and physicians who have or suffer from substance abuse issues.
This is particularly important when you consider that these doctors are responsible for the lives and well being of their patients. Many of which can suffer significant harm from such issues.
Prescription Drug Control
Prescription drugs are at epidemic levels and doctors are the largest prescriber of such drugs, which cause over 100 deaths each day. Under prop 46 the dispensing of these pills will be properly monitored to avoid abuse. In fact it will require doctors to check the CURES database to make sure patients are not doctor shopping. This will drastically reduce the number of fatalities caused by the use of these drugs.
Attorneys Will Benefit But So Will Patients
Attorneys will undoubtedly benefit from the passing of proposition 46, but it will be the consumer who will benefit most. I cannot tell you how many cases a day we reject or turn down because of these laws. It is at times difficult to see the reaction on our clients face when we explain our reasoning and equally refreshing to see that they get active about these issues when they are made aware of them. However, the parties who will have the most to gain from this will be the hundreds of thousands of people who are hurt or die each year because of their doctors negligence. It is time that victims of medical malpractice be afforded the same type of recovery and justice as everyone else. For that reason we vote YES of 46.
Medical Negligence in a Nutshell
Wrongful Death Claims and Doctor Negligence