Initiative to Raise Monetary Awards in Lawsuits Against Doctors Heads for Ballot

The measure would also require random drug and alcohol testing of physicians.

Patch file photo.
Patch file photo.

A wide-ranging initiative that includes raising the limit on pain and suffering damages in medical malpractice lawsuits and requiring random drug and alcohol testing of doctors has qualified for the November ballot, Secretary of State Debra Bowen announced Thursday.

If approved by voters, what backers have dubbed the "Troy and Alana Pack Patient Safety Act," would adjust for inflation the $250,000 limit for pain and suffering damages in medical negligence lawsuits that has been law since 1975.

If the $250,000 limit had been adjusted for inflation since 1975 it would now be $1,101,635.69, according to Bureau of Labor Statistics figures.

The measure's provisions also include requiring hospitals to conduct random drug and alcohol testing of doctors who practice there; doctors to report other physicians who appear to be impaired by drugs and alcohol on duty; and reporting of positive tests to the California Medical Board.

It would also require health care practitioners to consult the state prescription drug history database before prescribing certain controlled substances. Initiative proponent Bob Pack created the database.

"California voters have taken the first step in making sure that more families like mine don't have to experience the pain of losing a child due to dangerous medicine," said Pack, a technology executive.

Pack's son and daughter were killed when they were struck and killed by a car driven by a drugged driver as they were walking on a sidewalk in Danville with their mother. The crash also killed Pack's unborn twins. The initiative is named for them.

The initiative would result in higher malpractice costs for state and local governments at least in the low tens of millions of dollars, potentially ranging to more than $100 million annually, according to an analysis prepared by the Legislative Analyst's Office and Department of Finance.

The analysis also found the potential state and local government costs associated with changes in the amount and types of health care services potentially range from relatively minor to hundreds of millions of dollars annually.

Passage of the measure would increase medical liability costs, make it harder to attract doctors to the state and give attorneys greater incentives to file meritless or questionable lawsuits, according to Kim Stone, president of the Civil Justice Association of California, which lobbies the Legislature to reduce what it calls "unwarranted and excessive litigation that increases business and government expense."

Valid signatures from 504,760 registered voters -- 5 percent of the total votes cast for governor in the 2010 general election -- were required to qualify the measure for the November ballot.

A website in support of the initiative can be found at PackAct.org.

The measure is at least the fifth that will appear in the November ballot. The others are an initiative that would require the insurance commissioner to approve any increases in health insurance rates; a measure regarding the state's rainy day fund; a referendum seeking to overturn two gambling compacts; and an $11.1 billion water bond.

--City News Service

Scott Zwartz May 17, 2014 at 02:03 PM
(1) It sounds as if the initiative violates the one subject rule by combing drug testing with indexing the $250,000.00 cap on medical malpractice award. (2) Truthfulness requires people to admit that the initiative does not appear to be increasing the awards. Rather it makes certain that in real dollars the size of the awards does not decrease due to inflation. (3) There is no proof that the cap on the general damages portion of medical malpractice claims increases the number of frivolous lawsuits. A frivolous lawsuit is one with no merit and California has safeguards against frivolous lawsuits. 3(a) A lawsuit will no merit is a financial disaster for the plaintiff attorney who advances costs, which can easily be $60,000.00 to $100,000.00, and the plaintiff attorney does not get paid unless he/she wins the lawsuit. Thus, frivolous lawsuits are the quick road to bankruptcy for plaintiff attorneys. 3(b) Code of Civil Procedure, 128.7 and Bockrath v Aldrich Chemical (1999) 21 Cal.4th 71, 107 Cal. Rptr.2d 617 also deter frivolous lawsuits. All the defendant has to do is serve a CCP 128.7 Motion advising the Plaintiff that his/her lawsuit is frivolous and point out why. If the frivolous lawsuit does not go away in 21 days, then the plaintiff and his/her attorney are on the hook for the doctors' and hospital attorney fees. 3(c) Judges have the power to throw out any jury verdict which they dislike, and a significant number of GOP appointed judges simply reduce or throw out verdicts against doctors and hospitals. (See the current flap about the judge overruling the jury in the Donald Sterling case. It is not a medical malpractice case, but judges frequently throw out jury awards against billionaires and insurance companies.) The most likely result of filing frivolous lawsuits is that the plaintiff attorney goes BK due to his/her perpetually losing and due to his/her having to pay out hundreds of thousands of dollars to the doctors and hospitals lawyers. The public does benefit from having the awards indexed for inflation. When the attorney has to advance costs and work with no pay for years, honest claims are deterred. The $250,000.00 cap on awards often means that the insurance companies can drive up the litigation costs so high and delay the case so long, that the attorney will lose money even if he wins the lawsuit. It is financially beneficial for an insurance company which faces tens of thousands claims to spend $300,000.00 to defeat an honest claim. Even if the insurance company loses the case, the attorney's fee cannot exceed $125,000.00. When an attorney has to advance $60,000.00 in costs and then get less than 1/2 of his/her fees after 2 or 3 years, such "wins" will not only drive him/her out of business but it will also deter other attorneys from taking honest cases. The insurance companies and hospitals could do a better job of policing their own doctors, but with the present law, it is cheaper to fight the few claims that are made than it is to upgrade medical practices so as to reduce injury and death by careless, incompetent and drugged physicians.
de anne May 20, 2014 at 06:38 AM
Its about time doctors and surgeons were subjected to random testing for drugs and alcohol. Nurses are frequently tested but yet the physicians/ surgeons aren't. Why? There's a high percentage of drug/ alcohol abuse and impairment of these professionals yet they aren't tested. We literally put our lives in their hands. Test them all...randomly!


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