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Prop. 46 Why You Should Vote Yes and Support California Patient Rights

Prop. 46 Why You Should Vote Yes and Support California Patient Rights 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. Further Information: Medical Negligence in a Nutshell Wrongful Death Claims and Doctor Negligence


With regard to the “cap,” please take note that… even if one believes that the cap is an effective means to keep scumbag lawyers on a leash while still fully compensating victims of hack doctors, the amount which our legislature thought to be the perfect amount was $250,000… in 1975… it is now 2014… inflation has reached us in every area… there should be no reasonable argument against the notion that a dollar is 1975 bought more than it does in 2014. An adjustment for inflation to 2014 values should be acceptable… even for those promoting the cap.

Another point to make is that MICRA is absolutely discriminatory in its effect… the limit on pain and suffering of $250,000 is very often the limit of the entire case when it comes to the elderly and more often than it should be when it comes to women and minorities… Punitive damages? There are no punitive damages in medical malpractice cases… Lost wages? People over 65 are retired and women and minorities earn less than white males. Medical Costs? People over 65 have MediCare so there is none, and people on MediCal have none either. People, think before you vote. This law hurts the elderly and women and minorities and the poor… the very people who seem to NOT get the best medical care in the first place.

As a medical malpractice attorney AND physician, I found it difficult to read most of the Internet posts on this topic due to the misinformation, the hatred toward lawyers, the dramatic boo hoo me posts from physicians, and such. It’s really a very simple issue when boiled down. There are of course many great opinions posted, too bad they are often obscured by many over the top replies.

When I look into talking on a medical malpractice case, I know that physicians are not held to a standard of perfection or even to the standard of being the best or even almost the best in their field… They are held to the standard of care for their community and peers. The California legislature has made the legal procedures and rules for medical malpractice cases different from other areas, and done so with a purpose – that purpose being protection of doctors… and while there are many who see protecting doctors as a bad thing, it is not in and of itself really so… some doctors should be protected while others should not get the extra-legal shield afforded by the law. Physicians provide an extremely valuable services to the public and one that requires an enormous amount of skill and brain power to provide correctly – all in a field which is not black and white science but science and art combined – lives are at stake, opinions vary, advancements in science abound, no two patients are alike, etc. In addition, medical malpractice cases are extremely expensive and difficult to bring (properly, that is… anyone can slam together an unintelligible complaint and pay the filing fee). To make a suit “worth it,” there needs to be significant damages – and damages that would not have occurred otherwise. As a generalized example, a one month delay in treatment, that is just as effective one month later as it would have been earlier is not going to provide significant damages.

The current law makes bringing frivolous or even low dollar suits economically destructive for an attorney… as it stands now, those of us who know what we are doing will only take the high dollar cases… the hard costs of suit are enormous (as medical experts now regularly charge upwards of $800 an hour for testimony).

As for people who figure this is someone else’s problem… I hate to remind people that the victims of medical malpractice never thought they would be victims before they were… they were plain old people who trusted doctors and such prior to their “incident” (as defense counsel like to callously call it). Their lives are ruined and they deserve fair compensation… since medical injury cannot be undone, all the courts can offer is money.

– Paul

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