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Trial attorneys and Attorney General pose a deceptive threat to healthcare in California

Thursday, May 8, 2014
posted by Guest Column

Guest Commentary
by David King

I have represented physicians, medical groups and Ambulatory Surgical Centers in matters of corporate, general business and regulatory compliance for the past ten years of my 17-year legal career. I am also a CPA who understands the unique profession of medicine, and I know that California’s excessive regulation diverts resources from patient care.

This 2014 election is a war between physicians on one hand, and the double-headed Orthrus of the plaintiffs’ Bar and Attorney General Kamala Harris on the other. Harris has enabled a ballot initiative which would repeal the Medical Injury Compensation Reform Act (“MICRA”) and thereby increase malpractice damages which may be recovered from doctors, hospitals, nurses, community clinics, firefighters, EMTs and other health workers. However, the repeal of MICRA is deceptively buried under the issue of “substance abuse.”

MICRA was passed in 1978 to solve a litigation-induced crisis in malpractice insurance. All subsequent efforts to modify the law have failed—because the law reduces healthcare costs. MICRA fairly compensates patients who are injured during medical care by providing unlimited compensation for past and future earnings, past and future medical care, and even punitive damages, while it reduces incentives to file meritless lawsuits.

“Total awards, the sum of economic and noneconomic damages, have significantly outpaced inflation in our state, so that injured patients today actually receive higher awards than in past years. What trial lawyers aren’t saying is that their payouts have also increased significantly,” according to Sacramento pediatrician Dr. Paul R. Phinney, former President of the California Medical Association (“CMA”).

Kamala Harris has repeatedly abused her powers as Attorney General to mislead voters on ballot initiatives, destroying the measures she disfavors, such as pension reform. She shamelessly misuses her authority to lay the foundation for her 2018 campaign for Governor. Medical doctors are only the latest victims of Harris’s political manipulation of Californians’ Constitutional rights of direct democracy.

Harris favors the repeal of MICRA, so she cloaks this unpopular initiative under a misleading summary. She has consistently positioned herself to the left of Jerry Brown and Gavin Newsom, building her base of support to run for Governor—trial attorneys fund campaigns.

Anyone who knows the law and its impact on the public understands the difference between taking action based on the law, versus being a politician and pandering about the way things ought to be. Kamala Harris and Jerry Brown are politicians who misuse their authority, not real lawyers. This type of manipulation erodes the rule of law, particularly California’s constitution.

By lowering healthcare costs, MICRA has improved Californians’ access to care. No less than 28 other states followed California’s example by limiting non-economic damage awards.

With the support of trial attorneys, Harris has sanctioned a misleading summary for the “Troy and Alana Pack Patient Safety Act of 2014.” The ballot summary which Harris approved states the following:

Requires drug and alcohol testing of doctors and reporting of positive test to the California Medical Board. Requires Board to suspend doctor pending investigation of positive test and take disciplinary action if doctor was impaired while on duty. Requires doctors to report any other doctor suspected of drug or alcohol impairment or medical negligence. Requires health care practitioners to consult state prescription drug history database before prescribing certain controlled substances. Increases $250,000 cap on pain and suffering damages in medical negligence lawsuits to account for inflation.

 

Voters are left with a false choice: opposing the initiative suggests they reject drug-testing and requiring a query of patients’ existing prescriptions prior to prescribing controlled medications. According to the American College of Emergency Physicians: “Make no mistake, this is about rolling back MICRA by more than quadrupling the current cap, with more increases for the foreseeable future. Unless defeated, the measure will be costly for consumers and taxpayers, and would reduce access to care for patients.”

Just last year, following our state legislature’s rejection of efforts to repeal MICRA, the CMA’s President Phinney demonstrated confidence that MICRA would remain in force: “Legislation this year or a ballot measure in 2014 were floated in the media by trial lawyers, yet nothing has shown up publicly, which shows this is the same posturing trial lawyers have been doing for decades.”

Contrary to Phinney’s 2013 expectations, the repeal of MICRA is underway but it does not “show up publicly.” Instead, deceptive trial attorneys and a complicit Attorney General seek to repeal MICRA through a misleading ballot initiative about physician substance abuse and over-prescribing controlled medications.

The U-T San Diego editorial board concluded, “Attorney General Kamala Harris intentionally deceived ballot signers by highlighting one of the fig leaves that trial lawyers attached to the measure to hide their real intent.”

The obvious flaws in the “drug prescription controls” included in the “Pack MICRA-Repeal Initiative” betray its underhanded purpose. “CURES” is a database searched by physicians prior to issuing patients prescriptions of certain controlled substances. The Pack MICRA-Repeal Act would require doctors to search the state’s CURES database prior to writing a prescription for such drugs.

However, the Pack MICRA-Repeal Act includes no requirement that physicians register to use the database. In a glaring omission, the Pack MICRA-Repeal Act does not require physicians to enter any information about the drugs they prescribe into the database. Thus, doctors would be required to search and rely upon a database which might have no record of the prescriptions other doctors have written. This bears all the wisdom of checking the mechanics of a car without opening the hood.

The Pack MICRA-Repeal Act is transparent. It is solely intended to raise medical malpractice damages.

The initiative would increase exponentially the number of malpractice lawsuits, raising insurance premiums, reducing the services offered by doctors, driving doctors out of California or into retirement. The Pack MICRA-Repeal Act would reduce Californians’ access to healthcare.

While Californians face this deceptive threat to healthcare, Attorney General candidate Phil Wyman floats aimlessly in the clouds. His ongoing attempt to redirect Californians’ attention to decades-old achievements in “aerospace,” “Barry Goldwater” and the “B-1 Bomber” demonstrate he is unfit for office. His so-called “quiet leadership” will fail to counter the challenges in California’s political status quo. Rather than engage in the changing needs of California and its citizens, Wyman freely makes inappropriate statements that reflect his rigid agenda—one which is far out of touch with Californians.

Addressing Sen. Leland Yee’s indictment, Wyman said in a news release and telephone interview that the “most egregious” abusers of their public office, if convicted, should be able to choose their method of death: “[l]et that person choose. That person’s been at the pinnacle of power. If he wants to be executed by firing squad, let him.” Wyman’s positions demonstrate his failure to separate his personal opinions from objective, intelligent leadership needed to mount a credible challenge to Kamala Harris.

Let’s not allow trial attorneys and Kamala Harris to further their own agendas, thereby increasing the costs of health insurance and patient care, as well as the costs imposed upon taxpayers and the immense burdens upon physicians, those who commit their lives to the care of others. California’s regulatory and litigation environment has strangled small business for decades. Let’s not add our most fundamental and crucial medical care of to California’s list of casualties.

The time has come to elect an Attorney General who is not a politician, but instead knows the law and its real impact on families and doctors.

# # #

King is a Republican candidate for California Attorney General, a former auditor-CPA, an attorney with 17 years of experience in the public and private sector.

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8 Responses to “Trial attorneys and Attorney General pose a deceptive threat to healthcare in California”

  1. D. Morton says:

    Most guys I know who got divorced in the 40′s were content to simply buy a European sports car they couldn’t afford and date a younger woman…

  2. David King says:

    A very enlightening comment in response to this thorough analysis of the impending threats to healthcare and the integrity of our rights of direct democracy. As you hide behind an alias, I don’t know who you are, but your comments are ample reason to deduce that “the guys you know” are absolutely nothing like me.

  3. bill @ the county says:

    Mr. King writes that the proposal is a “deceptive threat”, yet I lost count of how many times he repeated the phrase that this is a “repeal of MICRA” which it most certainly is not.

    I’m sorry, but I’ve spoken to far too many parents of dead children who cannot bring a case because the current 40 year old cap has reached the point where filing a case is economically unfeasible.

    His statement that “MICRA fairly compensates patients” might hold water if he or the supporters of MICRA could find one malpractice victim who would agree with that.

    I also am not a trial lawyer.

  4. David King says:

    Then why can’t that law be changed in the legislature?

    Failed.

    It would also fail if it weren’t buried under substance abuse.

    Shoot straight if this is a just cause.

  5. bill @ the county says:

    First of all, you didn’t answer any of my questions. As to why the legislature can’t change the law, you know yourself the power behind MICRA. About 15 years ago the State Bar voted 2-1 in favor of revising the MICRA cap, and a lawsuit was filed which threatened to dismantle the organization.

    I didn’t write the proposition nor did I have anything to do with it. I know of several families of dead children who are upset about it because they don’t believe there should be any cap.

    Regardles, your statement to “shoot straight if this is a just cause” is laughable, considering the truth you stretched in your essay.

    I don’t usually give advice to the other side on this issue, but I’d really suggest you and organizations like CAPP would quit saying how MICRA “fairly compensates patients”. It just pisses people off.

  6. David King says:

    You’re defending a “deceptive” ballot measure, whether you wrote it or not.

    What’s “laughable” is to say that this measure is intended to deal primarily with “substance abuse.” Do you truly believe that is the purpose?

    A State Bar vote? The State Bar is the problem–trial attorneys.

    Despite the cap (SOLELY on non-economic pain & suffering): “Total awards, the sum of economic and noneconomic damages, have significantly outpaced inflation in our state, so that injured patients today actually receive higher awards than in past years. What trial lawyers aren’t saying is that their payouts have also increased significantly,”

  7. bill @ the county says:

    And what’s that supposed to mean? Maybe a surgeon or two botched a finger operation on a baseball pitcher and had to pay out 100 million for his lost salary. And last I heard there’s no shortage of doctors in Beverly Hills or La Jolla willing to work on expensive clients.

    The problem with MICRA’s reliance on “economic” damages is that there are some pretty big asterisks after the statement saying your medical damages are “unlimited”. If you’re injured no one gives you an “unlimited” card for your medical expenses. What your medical expenses might be in the future are an expert’s guess. The defendant doesn’t have to pay them up front, because MICRA forces periodic payments. If the person who is injured by malpractice is only expected to live another 2-3 years (even if it’s caused by the malpractice!) the payments will only last 2-3 years. And God help you if you live 5 years or more because nobody’s paying for your care —except the taxpayer. And here’s the kicker– if you die sooner, the defendant pockets the balance. Nothing goes to a parent or other caregiver who might have given up a career to care for the injured patient. It’s pretty much a win-win for the defendant.

    Studies in Texas and elsewhere show malpractice “reform” hasn’t lowered healthcare costs at all. In fact, the insurance providers admitted as much. Texas had to change its constitution to pass its “reform.” In other states caps have been ruled unconstitutional, usually by conservative courts. In Wyoming they tried to pass a cap and the citizens voted it down because they didn’t want government in the jury room.

    The bottom line is you either believe it’s ok to slam the door of justice closed on our most vulnerable citizens or you don’t. If a 250k cap was an acceptable amount for insurers nearly 40 years ago then there’s no reason a 1 million cap wouldn’t be acceptable now.

    I’m not naive. Something tells me that since you’re running for Attorney General and you’ve written this piece, you’re a recipient of the generosity of CAPP and its affiliated organizations. Just remember that the CEO of CAPP and The Doctors Company make more in a year than a blind or crippled child would receive for a lifetime of pain and suffering. As Ben Stein said, Tort Reform is a license to steal.

  8. David King says:

    Economic damages and punitive damages are unlimited. The medical MP attorneys I know make “bank.”

    If you are a county employee, you owe an obligation to the public.

    If this initiative has so much merit why LIE and say it’s about substance abuse?

    If this passes, healthcare will suffer and attorneys will profit. I swear on the souls of my children.

    Now who are you? What is your name?

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