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Prop 46: Two Bridges Too Far

Uploaded: Oct 15, 2014
The insider's view of Prop writing must present a tantalizing panorama of options. There has to be a temptation to glom several, directionally-related concepts together, perhaps the better to attract funding allies for promotion. The problem such bundling creates is that the Proposition becomes only as strong as its weakest link. Pre-packaging magnifies the opposition, since voters only need to dislike any one of several provisions to pull that No lever. The burden is always on the advocate to make the case for its proposal; I've reluctantly concluded that these sponsors haven't done so.

Prop 46 includes three disparate concepts, all of which ostensibly reduce the incidence or consequences of medical errors. Those mistakes are a serious problem ? one recent study concludes that they are the third-leading cause of death in the USA. Prop 46 purports to address parts of the problem, as follows:

1 -- update and index the 1975 MICRA limit on non-economic damages in medical-malpractice suits, and

2 ? require random and 'for-cause' drug-testing of doctors, as a safety precaution, and

3 -- expand and require doctors to use the state-sponsored CURES database, to avoid writing duplicate prescriptions for dangerous drugs.

Let's look at each, in order.

MICRA was passed in an era of concern over runaway jury awards, with medmal cases being the prime examples (although higher health care costs were a worry, the real crisis was the possibility of docs leaving the practice or the state, due to burgeoning malpractice insurance premiums). Although economic damages (e.g., lost income, medical expenses, lost opportunities) and punitive damages were left untouched, so-called non-economic losses (e.g., pain-and-suffering, lost consortium, emotional distress) were capped at $250,000. It also limited plaintiff's attorneys fee percentages at various stages of claim resolution. By many reports, MICRA succeeded in stemming any tide of MD exodus.

That selective limit on damages, which does not apply in other professional malpractice, personal injury or similar claims of civil wrongs, has not been adjusted since passage. On the raw numbers, when the familiar Consumer Price Index is applied to the 41-year period since 1973, that $250,000 becomes $1.105 million (or if you prefer to look backwards, $250,000 now was the equivalent of about $56,600 back then).

Let's assume that MICRA was a good idea. Its cap has shrunk by five times ? is that limit Still good policy?

Some folks, especially members of the defense bar, will argue that non-economic losses are inherently too subjective, and subject to manipulation in the hands of crafty carnivores in sharkskin suits. Such damages Are allowed, however, in nearly every other similar kind of claim, and without limitation.

The real problem here is that, in America, plaintiff and defendant typically bear their own litigation costs. Those carrying costs are considerable in medmal cases, for experts, tests, etc., in addition to attorneys' fees. Further, some medmal victims do not have much in the way of economic losses ? think babies and oldsters (in the gruesome calculus of the law, that's especially true if they die as a result). The cap serves to render any lawsuit on their behalf impractical, as expenses would devour the potential award. The same may be true of smaller claims, in general. Regardless of subjectivity ? 'pain,' and 'suffering,' are real ? and in the event of a negligent cause, the perp walks away, without consequence.

The new Prop 46 cap would be $1.1M, and would be adjusted annually to stay current. For all the ambulance-chaser imagery used to demonize plaintiff's attorneys, the currently foreclosed victims ought to be the focus, and I have no problem readmitting their claims to the judicial process.

I'm also not impressed with the bloated estimates of overall health care system cost increases ? there will be a small percentage increase we all share in return for proper compensation of victims ? but it's a minor cost element. It's also a cost we share in Every Other kind of industry, as every business tries to pass-through to the customers its liability insurance costs.

So far, so good, Prop 46, but not for long.

Doctor drug-testing. This requirement works by analogy to similar dictates covering other safety-related professions ? long-haul truckers, pilots etc. If it's important enough to require them to fill the occasional cup, then why not the docs?

Supporters argue the medical errors evidence, above, and cite other stats to the effect that a significant, small percentage of MDs abuse substances. What I have not seen the proponents do, however, is to argue a direct, causal link. Without that, we have a 'rooster caused the sunrise" problem (or post hoc, ergo propter hoc in case you went to Catholic school). Sequence is not causation, and the burden of persuasion relates to the latter.

The linkage to all medical errors is also tenuous. Those are committed by everyone in the treatment chain ? nurses, PAs, pharmacists, device manufacturers, and others ? do docs commit the lion's share? You must convince me that they do, or else you need to argue for testing them all. It's the same safety.

Finally, others, not in government, also have a safety promotion interest here. Employers, clinics, the above malpractice insurers and practice partners all share the financial consequences of errors. If drunk docs are a systemic problem, smart participants will prescribe their own cures.

CURES database. The California DOJ maintains a database called CURES, containing all prescriptions written for certain drugs, including patient name, address and date-of-birth. Law enforcement and health care providers who register (currently only about 12%) have access to these patient histories. Prop 46 would require all providers to register by 2016, and to check the database before prescribing covered drugs to their patients.

The purpose of this requirement is to discourage the kind of doc-shopping that supplied the pill-popper whose car killed the Pack family's son and daughter in Danville. The circumstances of that tragedy are unimaginably poignant, and the hearts of everyone, everywhere in these valleys break at its recollection. The question here, though, must be asked: is this the right 'cure?'

The nature of substance abuse brings out the most wretched kind of resourcefulness in the typical addict. With all the pills left over in all the medicine chests, will foreclosing the option of duplicate prescriptions choke-off the supply? Given ample evidence of the thriving trade in other illegal products, I have to doubt it.

The argument may still be made that greater expense and inconvenience will surely cut-down on the problem -- and any life so-saved is precious. We don't require other solutions to be perfect, after all. I'd like to concur, but need more evidence that this is the way to go.

Finally, if your first reaction was 'Holy exclamation, the state has a CURES database ? and I'm in it?!,' then you've hit on one last issue. Such official compilations have to balance the interests of law enforcement and safety against the privacy interests of the individuals whose data are compiled, as well as against other options to address the problem. In the post-Snowden world, I really need to see that balance before I will vote to extend its impact.

In 1944, the Allies attempted an assault called Operation Market Garden, in The Netherlands. The book and movie "A Bridge Too Far" describe it. It failed because it tried to do too much. I believe Prop 46 is similarly over-ambitious. I'm aware of the huge sums being spent to oppose it, but that money argues exclusively against the one provision whose passage I'd favor. It's a close call, and I hope that folks will chime-in on these merits, but I haven't found enough evidence to be persuaded to support this Proposition.
What is it worth to you?


Posted by Eric Andrist, a resident of another community,
on Oct 16, 2014 at 9:48 am

If you don't know how something came to be, you really shouldn't just make up facts about it Mr. Cushing. Nothing was "glommed" together into Prop 46. All you're doing is giving voters reasons to vote the way you want them to vote, based on erroneous information.

Prop 46 is NOT "three disparate concepts; it all relates to patient safety which is ONE concept. Like a cake has many ingredients, in the end you just get one cake. It's NOT a serious problem, that's just dramatics.

Let me take your points in order:

1. It wasn't 1973 that MCIRA came to be, it was 1975, and technically didn't get finalized until 1977.

2. Prop 46 requires random drug testing of doctors on staff in hospitals (or if they have admitting privileges) and after all adverse events.

3. Prop 46 does NOTHING to "expand" the CURES database, it makes no changes to the database itself at all. Voting yes or no makes no difference to the CURES database itself, it only will require it's use if passed. Currently, it is 100% optional for doctors and pharmacists to use it.

4. MICRA was passed due to a bogus scam perpetrated by ONE insurance company, Argonaut Insurance, who had done poorly in the stock market. In order to recoup those funds, they concocted an insurance scare. Here's an article from the NY Times detailing that story: Web Link

MICRA has NEVER lowered doctors malpractice insurance rates, and in fact Prop 103 was instituted in 1988 to fix (in part) what MICRA never accomplished. All it accomplished was keeping victims of medical negligence out of court.

Doctors did NOT leave the state, that was more propaganda by the medical and insurance industry at the time, and ironically they're using the same propaganda today with Prop 46. Here's another article from the NY Times in 1977, two years AFTER MICRA passed that says that less than 1/2 of 1% of doctors actually left the state: Web Link

MICRA had nothing to do with stemming any tide, because the tide never existed in the first place.

4. I don't know of anyone on our campaign that is attempting to link intoxicated doctors to medical errors. BUT, it would not be far-fetched to think that if an intoxicated doctor were to work on a patient, it could lead to a disasterous conclusion. In fact, here's a couple of stories detailing doctors under the influence. The first one actually DID harm and kill patients.

Dr. Christopher Duntsch youtu(dot)be/1prdAQ4To_Q
Dr. Darryl Westerback youtu(dot)be/LZYgQ6uThdU

Don't think for a moment that this is not a serious issue. It was the California Medical Board itself that came out and said that 1 in 5 doctors will have a drug or alcohol problem during their career.

5. Prop 46 does NOT "require all providers to register by 2016", SB809 requires that. Prop 46 only requires that doctors and pharmacists check the CURES database before prescribing a new schedule II or III drug to a patient.

It's not meant to be a cure-all for all drug addiction problems, but every tiny step we take in that direction will be of help. Sure drug abusers will always find some place to get drugs, but why would we give them more avenues to get them, when we can at least stop them at the pharmacy? We limit gun sales, should we allow anyone to get a gun at the grocery store simply because they'll get it somewhere else otherwise????

6. The CURES database has been collecting narcotic information since 1939. It's been in an electronic form since 2007. Sure, most people don't know about this, but if they've gone this long not knowing about it and it hasn't been a detriment to their life, it's not likely going to be a detriment in the future. Prop 46 does not change the CURES database in any way, it only requires that doctors and pharmacists CHECK it before prescribing and giving out medication. It doesn't even tell them they can't do it, it only tells them whether a patient has already gotten the drug elsewhere.

The BILLION DOLLAR INSURANCE industry has amassed over $45 million to fight Prop46. That alone should tell you that they're scared of something. Well they are, they're scared of loosing a huge chuck of their $2 billion in profits they got off the backs of harmed patients!

Posted by Tom Cushing, a resident of Alamo,
on Oct 16, 2014 at 10:36 am

Hi Eric:

Thanks for your response. I've made the technical correction on the MICRA passage date. It also changes the inflation-adjusted value of the cap, so I changed that, too. We agree on the MICRA situation -- I didn't have to reach the ultimate question of whether MICRA was Ever a good idea -- there's plenty of propaganda on both sides of that issue. To be able to support that provision, it's enough for me that the cap should be raised to keep it current. It's way too low, in my view.

Here are a few other thoughts.

As to your point 4, I'm not sure how you justify that drug-testing provision if it's Not related to avoiding intox'd docs. How Else does it relate to your (and my) stated goal of Prop 46: "patient safety?" Further, you've made the same causation mistake -- to persuade me, you have to show me Not how many docs abuse substances, but instead how many medical errors Result from docs' substance abuse. It may be a few or a lot -- I don't know and could argue either likelihood. The point is that it's the Proponents' Burden of persuasion, and they haven't carried it well.

Thanks as well for contributing your knowledge of the CURES database history. I hear your argument (indeed I made it for you in the blog) about incremental progress; it just doesn't get me over the hump as a policy solution.

I do continue to believe that the three-parts of Prop 46 make it over-ambitious. It loses my vote as a result. If it loses others as well, that's what I call a 'serious problem.'

That said, this really IS the kind of useful discussion that may be valuable to others in making their decisions. I hope there can be more of it.

Posted by DirkaDirka, a resident of San Ramon,
on Oct 16, 2014 at 11:10 am

The Dirka's ipdad has a ghost in the machine. Sometimes things send on there own.

Agreeing with the conclusion, does not mean the Dirka agrees with Tommy's unique form of reasoning.

That said, this is not the first time the Dirka and Tommy have found common ground; but as usual, we have diametrically opposed methods for coming to our conclusions.

Posted by Tommy Cushing, a resident of Alamo,
on Oct 16, 2014 at 11:26 am

I dunno, Goatster, it seems to me you also agree that it was over-ambitious -- if I am correctly interpreting your unique stylings.

I'll leave it to Eric and others to deal with your notion that this Prop came out of the legislature.

Posted by dirkarino, a resident of San Ramon,
on Oct 16, 2014 at 12:33 pm

Initiatives and all, aside, it's a mess. Technically not the legislature, Dirka concedes this point. However, many are partners in this piece of garbage. ... semantics to a great degree.

Over-ambitious is an understatement. It's exactly what the Dirka said it was, 10 pounds of goat issue in a five pound bag.

Addicts will always find a way. Ever heard of the hillbilly heroin trade? They bus 'em across state lines, literally.

They are making a mountain out of a mole hill. This state has far bigger problems and this prop is adding more to the pile.

Posted by American, a resident of Danville,
on Oct 16, 2014 at 1:50 pm

Tom: Are we having another earthquake on the anniversary of Loma Prieta, or do you and I actually agree on something other than the A's and helping rescue dogs? Yes, this is a terrible amendment that the public, thankfully, is smart enough to vote down.

It would lead to doctors practicing even more "preventative medicine" by ordering even more unnecessary tests to defend the ambulance chasers, and drive up medical bills and insurance rates for everyone.

Although Mr. Pack suffered a terrible loss when his children died, he misleads the public in his commercials that "medical malpractice" killed his children. His children died when a woman who was drunk out of her mind and on medications drove off the road an onto the sidewalk and hit his children. The children died at the scene, not at the hospital. The claim that the Kaiser doctors "caused the death" by giving her pain pills is ridiculous, she was an adult, and she decided to get drunk and take too many pills and drive. If we are going to drug test doctors, better drug test everyone who sells booze as well since she was drunk. If the doctors at Kaiser killed her children, than the drunk loser behind the wheel should immediately get out of jail.

Should MICRA increase from $250,000 to something else? Maybe, perhaps to $300,000, but many malpractice policies are for one million dollars. So if this passes and MICRA increases to over one million dollars every brand new ambulance chaser can shake down the medical malpractice claim reps with bad faith allegations if they fail to settle for the policy limits in almost all cases, which will drive up premiums, drive up healthcare, and drive many doctors out of risky practices, such as OBGYN and neurosurgery.

The only winner in this amendment is the ambulance chaser.

Yes, Tom, I agree with you, vote no on this nonsense!!

Posted by Tom Cushing, a resident of Alamo,
on Oct 17, 2014 at 7:30 am

Congrats, Am!

But I don't understand your MICRA cap approach. If it worked, why shouldn't it be inflation-adjusted? All those dire consequences you predict didn't happen at the original number -- so why would they happen at the inflation-adjusted amount? Would you abolish All damages for non-economic losses, in slip/falls, and other negligence cases? If not, why is medmal a special case?

Posted by TFC's e-mail box, a resident of Alamo,
on Oct 17, 2014 at 10:39 am

I received this email today. I have reprinted it below with permission, redacted as noted. It is a very personal, very important point-of-view from a San Ramon Valley couple.

"Hi Tom:

As parents who lost our daughter to a matrix of medical errors, we have an obligation to report back to California voters of what is at stake on November 4th. Here is our story:

[redacted by request]

Medical errors are not some political tactic dreamed up by attorneys: they kill up to 440,000 patients and injure 2.2 million patients each year. Errors add over $800b in waste to our $2.4 trillion health care system (Johns Hopkins Medicine). Increasing safety reduces costs across the health system. Prop 46 will increase safety and reduce harm, resulting in lower costs.

Doctors have always viewed malpractice suits as an affront to their profession, and re-direct their ire towards the trial attorneys to deflect the discussion away from the errors they make. The best way to eliminate lawyers from the equation is to stop medical errors from happening in the first place.

Since it is impossible for doctors to ?do no harm? when "to err is human?, we must hold doctors accountable when they make mistakes that injure or kill a patient. California?s cap on pain-and-suffering damages, a 1975 law known as MICRA, works very well for the medical industry, but it does not work well for victims of medical malpractice ? especially, low income earners, children, elderly and handicapped. In the United States, men and women are EQUAL under the law. While medical errors don?t discriminate, MICRA does! Luck should have nothing to do with accessing the justice system to seek account ability. Raising the MICRA cap to adjust for inflation is reasonable.

Failing to hold negligent MD?s accountable mean ALL OF US are enablers of a health system that kills over 400,000 patients a year!

Gov. Brown has stated that ?insurance company avarice, not utilization of the justice system by victims has been responsible for excessive med mal premiums?. The insurance industry continues to extract resources from our health system at egregious clip. The breathtaking ?investment? of $56 million mostly by the insurance industry to defeat Prop 46 is no question to preserve their profits; profits that have been made on the backs of medical error victims over the last 39 years. Again, it's not the attorneys driving up costs.

Do this the next time you see your doctor: ask them if they want their doctor drug tested. If they say yes, there?s your truth. If they say no, get another doctor. Lucian Leape, MD, a professor at Harvard?s School of Public Health ?The American public has accepted the idea that a physician works in the patient?s best interest. And most physicians do. But in the past 20 years, there?s more and more evidence that we have some definite problems.? There is so much evidence that he supports random testing of doctors to improve safety.

I was at Costco last night filling a prescription. I asked the pharmacist if they use the CURES Rx database when dispensing Rx narcotics. She said that Costco Corporate MANDATES use of the system for the pharmacies in CA. She described the system as "fast and easy to use" and that she "likes it from a risk management standpoint". Go ask for yourself.

Yes, no amount of money will bring our daughter back, but thank goodness there is money. It is just as important for the negligent party to pay damages to the victim they harmed as it is for the harmed victim to receive compensation. This is called accountability. And while it doesn't always feels good, it offers an opportunity to learn from mistakes. This helps improve patient safety, not just the doctor?s excuses.

Don?t wait for patient safety, make it happen! Vote YES on Prop 46!

[redacted by request]
Danville, CA"

Posted by San Ramon Observer, a resident of San Ramon,
on Oct 17, 2014 at 2:04 pm

San Ramon Observer is a registered user.


I read your blog a couple of days ago before you attracted all of these replies. I was planning to say I like Prop. 46 and will vote for it. I think "American" made the best arguments against it (better than yours), but Mr. Andrist and the anonymous couple make the best arguments for it. So I am still for it.

I'd like to add my personal experience, which doesn't really support Prop. 46, but highlights the risks of current medical care especially in Corporate hospitals.

You may recall I was in an automobile accident in January 2013. I was taken to the San Ramon Medical Center, where I spent three days recuperating from my injuries. On the second day, the nurse took my blood pressure as she did every day, and later I was given a pill for high blood pressure. Except I don't have high blood pressure and never did. I have low or normal blood pressure. Even in the ambulance and the Emergency Hall (I was not put in a room. I was on a gurney in a hall for 3 hours), my blood pressure was normal.

The nurse must have put the wrong readings on my chart, possibly from her last patient. The nurse was not drunk or on drugs, except maybe coffee. She was running around trying to cover too many patients with not enough sleep. I asked about the nurses schedules and was told nurses work a 12 hour shift 3 days a week. This is what happens when For Profits take over hospitals -- overworked medical workers.

I survived taking the high blood pressure pill. It wasn't a serious error and it wasn't repeated. But this is just an example of what can go wrong in a hospital. Doctors do take drugs, and nurses too, because of the stress and availability.

But the problem I described wasn't due to drugs. It was due to greed. Nurses are overworked, underpaid, and put in danger as we now see with the Ebola case, so hospital administrators can keep costs down and profits and stock prices up. The stock market has taken priority in almost every industry, over safety, employees, and even customers (e.g. PG&E). Hospitals should not be For Profit or on the NYSE. Hospitals should be for people, including nurses and doctors who should not have to take drugs to keep from going crazy.


Posted by Tom Cushing, a resident of Alamo,
on Oct 17, 2014 at 2:55 pm

Hi Lady Rogo: thanks for chiming-in (mostly ;-) ).

My fiancee also had a prescription filled in error -- wrong drug. It lowered her blood sugar, which is not a problem she has, so she was laid low for a time until she figured it out. I've never doubted that errors are made, but in neither her case nor yours -- as you noted -- would P46 have addressed the problem.

If you accept the 1 in 5 docs-on-drugs number, that does Not say how many docs practice under the influence, or then make mistakes. I'm not willing to assume that causal link -- in fact, because abusers are well-known to protect their livelihoods at all costs, I would guess that the incidence of substance-addled medical errors is very low. But it's a guess I shouldn't have to make -- the proponents' job is to remove that guesswork, and they have not done so.

Finally, please know that 'non-profit' is no antidote for 'greed.' At all. Specifically, it does not imply that they operate 'at-cost' or a dime cheaper than any other provider. Many such providers make tons of money -- they cannot distribute the excess, so they have tended to invest in the next new machine, or build more facilities (like all those new Kaiser hospitals going up) -- the better to keep charging outrageous fees. Read Steven Brill's "Bitter Pill" (I'll send it to you) or anything by Dr. Atul Gawonde for confirmation.

Posted by Remembering, a resident of Another Pleasanton neighborhood,
on Oct 17, 2014 at 9:03 pm

Thank you American! Your point is the reason I came this make that point myself. I remember the outrage that should have been directed to the Judge/Judges that let that alcoholic woman walk free every time (5 or 6) when in court for 'drunk driving'. She should have been behind bars. Shame on the judges for not putting her behind bars. I remember her driving up over the curb and hit and killed that brother and sister. Terrible tragedy! IF a professional killed them by incompetent actions, it would be the judge who turned her lose on the world. She should not have put herself behind the wheel.
I will not vote to make medical insurance sky-rocket because of unnecessary practices. This is over-reach, broad and costly, vote No, No, No. Back to the drawing broad...this is a nightmare. Two wrongs will not make things right. I understand Father's pain, but it is unrealistic and misdirected.

Posted by DirkaDirka, a resident of San Ramon,
on Oct 18, 2014 at 10:25 am

And look who loves 46, lawyer and queen weasel Boobera Boxer.

... an incredible liar and weasel...

If she comes out for it, you know it's baaaaaaaaaaad.

"Case in point: Barbara Boxer is one of the few elected officials in California actively advocating for Prop 46. Why is that? This is a state law ? not a federal one.

Well, it ends up her husband is a founding partner of a medical malpractice law firm in the Bay Area. (His name is ON the firm.) It?s not much of a stretch to think that a law that will encourage more lawsuits to get filed and increase payouts from those lawsuits ? and therefore increase the fees paid to lawyers ? will personally benefit Mr. (and therefore, Senator) Boxer."

By Tom Scott
Executive Director, California Citizens Against Lawsuit Abuse
Friday, September 19th, 2014

These elitist politician weasels take advantage of the masses. False friends....

Dira Dirka Bakala

Posted by BobB, a resident of Another Pleasanton neighborhood,
on Oct 18, 2014 at 2:44 pm

"If it worked, why shouldn't it be inflation-adjusted? "

For a lot of the same reasons that we don't _fully_ inflation adjust minimum wage laws, or proposition 13 limited tax increases (capped at 2% per year).

Posted by Tom Cushing, a resident of Alamo,
on Oct 18, 2014 at 3:05 pm

Dirka: as you know, I will vote 'no' on 46. That said, facts is facts, a little knowledge is a dangerous thing, and your posts should come with a warning label.

1 -- I can find no indication, anywhere, that Senator Boxer is an attorney. She's not a member of the CA Bar, and neither her website bio nor wikipedia indicates that she's an attorney. She seems to have a BA from Brooklyn College.

2 -- the law firm you refer to, Boxer & Gerson, is a workers comp, social security and personal injury firm that does next to no medmal. They do not mention it in their practice areas or their Firm Overview, which reads as follows:

"A Positive Force for Justice

Boxer & Gerson, LLP in Oakland, California is a law firm recognized nationally for its trial advocacy skills. Since our founding in 1977, our attorneys have been dedicated to protecting the rights of Bay Area workers, elders and families.

Advocates for the Injured and Disabled

In the area of personal injury, we seek compensation and justice in cases involving serious motor vehicle accidents, defective products, third-party workplace accidents, wrongful death and other acts of negligence.

Boxer & Gerson, LLP is the largest firm in Northern California representing injured employees. We aggressively seek workers' compensation benefits for our clients. Creative in our approach, we are recognized as one of the premier workers' compensation practitioners in California.

Our firm represents clients in Social Security Disability claim cases, many of which grow out of workers' compensation or personal injury cases. Clients appreciate our results-oriented approach and the personal attention and service we provide."

If you dig deep into the PI practice, they do mention medmal as one -- of fourteen -- areas they handle in that field. The primary PI partner in the firm is a friend of mine -- I recruited him there -- and he does -- no -- medmal. Suffice it to say that medmal does not pay the rent, and the MICRA limit does not pinch their revenue.

So, in your continuing zeal to practice blustery Gotcha politics on a Prop you thought came from the legislature(!), you continue to screw up. You might want to spend more time on your homework. Even the livestock are beginning to whisper...

Posted by Alan Richardson, a resident of San Ramon,
on Oct 18, 2014 at 10:07 pm

Trail lawyers and politicians in cahoots, does it really matter where it came form? I think Dirka was right, it is semantics.

The initiative system in California is as corrupt as hell. When politicians will not risk political cache, they jump on the bandwagon behind the scenes. Political behind the scenes quid pro quo deals driven by campaign contributions are a big part of the initiative system. This thing is garbage and what are the legislators saying? Nothing, this is because they are bought and paid for.

Regarding Boxer, she is a huge friend of special interest attorneys, an opportunist extraordinaire.

She is a liar:
Web Link
Web Link

Go figure, Cushing, retired lawyer turned legal personnel recruiter rushes to defend her and hers. Birds of a feather flock together. Perhaps D meant queen to the malpractice king.

It sure looks like Boxer is opting out in 2016 and so she's cashing in and repaying political campaign debit.

Dirka summoned it up incredibly well, 10 pounds of garbage in a nine pound bag. Special interests will try to bamboozle the public with bundling some reasonableness with garbage.

A lot of the stuff in 46 has merit, but it needs to be separated and refined. Too bad the legislature is more concerned with taxing and spending with Moonbeam and too chicken sh#t to fix this mess the right way.

Web Link

Posted by Remembering, a resident of Another Pleasanton neighborhood,
on Oct 18, 2014 at 10:19 pm

But the fact remains all the new lawsuits would make malpractice insurance skyrocket, and thus increase costs of medical insurance to all of us who pay our own medical bills and, as taxpayers, the increase rates for all others as well. It would not improve our medical care. It as a very misguided attempt that does harm, and puts medical care out of reach for more people, and also punishes taxpayers who'll pay increased costs for everybody. It won't prevent drunks from driving up over curbs and hitting pedestrians again.

Posted by Tom Cushing, a resident of Alamo,
on Oct 19, 2014 at 7:35 am

Aw, Alan ? you?re a loyal wingman, once again trying to bail-out your reckless friend.

But here?s the thing ? nowhere did I defend Senator Boxer. I do not know why she favors 46, but I Do know that it?s Not because of the false claims your buddy so gleefully spat. Sen. Boxer is not a lawyer and her husband?s is not a medmal law firm. It was a(nother) careless rant.

You, and he, seem to think that it?s acceptable to write any scurrilous nonsense simply because you don?t like her, or you think the referendum system sucks. It?s not. Blunders matter. Critical thinking matters.

You have a bigger stake in this, as you may be exposing your actual identity. It?s embarrassing. You might want to reconsider your approach, or at least anonymize it.

Posted by Joe Justice, a resident of San Ramon,
on Oct 19, 2014 at 8:02 am

If a drunk driver crashed into you killing your child and you later discovered that a state law now blocks you from obtaining an attorney to take legal action against the driver wouldn't you be outraged? And if you later discovered that the driver did not have to stop at DUI checkpoints wouldn't you be further infuriated?

In 1975 malpractice insurance companies created a phony insurance crisis then backed the MICRA law that passed and capped non-economic "pain and suffering" damages to $250K without inflation adjustment. Except in a rare punitive damage award this is the only award that can be paid in a wrongful death malpractice case for nearly 20 million Californians who do not have any job income(children, retirees, disabled, unemployed, ect), search on "caps harm California" and "protectconsumerjustice org how micra came to be".

Attorneys will not take these cases because the MICRA law also limits the attorney award to about 30%(BPC 6146) or $75K of any maximum $250K award and attorney and medical expert costs in a malpractice case can quickly exceed $75K

The MICRA cap and low non-economic damage caps in other states have enabled malpractice insurance companies to earn billions in profits by eliminating their monetary liability in these cases. It's no wonder insurance companies have spent tens of millions to defeat Prop 46 which doesn't even eliminate the cap, only adjusts it for inflation.

California malpractice insurance companies profit an incredible 70 cents for every dollar collected in malpractice premiums which leaves plenty of room for an increase in malpractice payouts without a rate increase to doctors. 22 other states do not have a non-economic damage cap and medical insurance rates are not any higher in those states nor are there shortages of physicians in those states.

Since 1988, Prop 103 has regulated doctors malpractice insurance premiums and can not be increased unless justified to the Insurance Commissioner.

Prop 46 also includes testing doctors for drug and alcohol which is done in many other occupations such as in the transportation industry to increase safety.

And Prop 46 requires physicians to check the state's existing and secure DOJ CURES prescription drug database before prescribing narcotics and other addictive drugs to curb doctor-shopping drug abusers, to prevent over-dose deaths and to reduce harmful behavior, search on "prnewswire prop 46 requiring physicians to check statewide prescription drug database".

PLEASE VOTE YES ON PROPOSITION 46 for Patient Safety and Patient Justice.

Posted by Remembering, a resident of Another Pleasanton neighborhood,
on Oct 19, 2014 at 4:16 pm

Again, you are complaining about attorneys. But, 46 is about sticking it to doctors and increasing medical costs to all patients and taxpayers who pay for patients who won't pay for themselves. This is being pushed BY attorneys to make themselves richer at the expense of society. From the first ad I saw by father Pack,I said why has e never attacked then, or now, he JUDGES who kept turning her loose on the streets. Now the lawyers will fill they pocket with ransom money from insurance companies, just to get it over. This poorly written mess will be another huge hit to our medical costs, and it's the middle-class that will, like always, foot the bill, good or bad. Twisted and short-sighted. Cruel...the rest of us become the victims, from these one-dimensional minds.

Posted by Tom Cushing, a resident of another community,
on Oct 19, 2014 at 4:44 pm

@Remembering: I am deeply skeptical about the 'gee whiz' numbers in the health care cost increases claim. Remember 'defensive medicine' and all those cost claims? A Cleveland Clinic study estimated all defensive practice as adding less than 3% to the country's health care bill -- and that included procedures that were only 'partially done for defensive purposes.'

Harvard School of Public Health concluded ALL liability, including the pass-through of doctors' medmal premiums accounts for only 2.4% of health care spending. Web Link

"How much do medical liability costs?including the costs of malpractice insurance, claims and legal fees and doctors practicing ?defensive medicine? to avoid being sued?add to overall medical costs? ...

"In an effort to separate fact from fiction?and to provide the first academic study of medical liability system costs? a comprehensive analysis from Harvard School of Public Health (HSPH) researchers found that medical liability costs totaled about 2.4% of annual health care spending in the United States, or $55.6 billion per year in 2008."

Some sky-rocket.

I daresay that the no-siders are using that $multi-B number because it seems impressive out of context, but as a percentage -- it's not much, and increasing a fraction of not-much is still not much.

Do you have other numbers that support the sky-rocket claim? I'd be interested to see.

Posted by Peter Kluget, a resident of Danville,
on Oct 21, 2014 at 10:21 am

This caught my attention:

"'If it worked, why shouldn't it be inflation-adjusted?'

For a lot of the same reasons that we don't _fully_ inflation adjust minimum wage laws, or proposition 13 limited tax increases (capped at 2% per year)."

Which is to say: "Because it benefits those who have assets and higher income, and is just one more thing which chips away at the financial security and safety of the lower middle class and working poor."

We've seen a lot of those kinds of laws overt the past 40 years - you know, the time period which has seen the gap between the haves and the have-nots widen to the greatest extent seen in the past 80 years. Always with slick spin which explains why it's "fair" or "good policy", but the bottom line becomes the same: another law, policy, or court ruling which tilts the playing field ever so slightly more against the middle class and the poor.

And you folks bloviating against "trial lawyers": Of course, there are trial lawyers who represent everyone, but you're not complaining about the ones who represent the rich and powerful, are you? Of course not. You only squawk about the lawyers who represent the poor and powerless in the limited areas where they have some recourse left for being injured or cheated by the strong and powerful. What difference does it matter that data shows overwhelmingly that pain and suffering caps do not actually affect the cost of medical care - you've been told differently, so you repeat that, mindlessly and endlessly.

I've never been involved in a MedMal case in any capacity, but the whining of privileged doctors magnified by the handy megaphones provided by the insurance companies seems to drown out the suffering and financial devastation of the folks who have been harmed by the minority of incompetent, impaired, and just plain greedy doctors who would be made immune from taking responsibility for their own actions if you folks had your way.

But hey - let them eat cake, right?

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