Tuesday, April 29, 2014


AB 1886 (Eggman) cleared committee today by 9 to 4. Organizations that should have spotted it as a dangerous bill were silent except for the Union of American Physicians and Dentists and the California Medical Association which were opposed. The UAPD states that "this bill would remove the requirement that specified information be posted on the Internet for a period of 10 years thereby requiring that information to be posted indefinitely." For doctors who've committed minor infractions such as being late with reporting requirements this legislation could be a life sentence, e.g., MPNs may very well reject applications of doctors who are listed even for such minor offenses as late reporting. Such doctors run the risk of  lifetime bans. We doubt that the proponents of the bill intend this consequence -- but there it is.

Under current law according to the  Medical Practice Act the Medical Board of California is obliged to post certain information such as malpractice awards on the Internet for 10 years. Once this requirement is gone, such information could be posted indefinitely, effectively a life sentence. The bill should be opposed unless amended.  

Sunday, April 27, 2014

Is SB 1429 (Steinberg) an aborted last ditch effort to settle medical malpractice liability ...

... or a possible vehicle for Gut and Amend at the end of the scheduled legislative session?    

In a nutshell, our opinion as of 28 April 2014 is that SB 1429 is almost dead in the water -- that's why we didn't discuss it in our previous article (RANDOM DRUG TESTING FOR LAWYERS: WHEN SHOULD LAWYERS BE DRUG TESTED?, 4/24/14)  about involuntary drug testing for lawyers. As matters stand now, the trial lawyers have committed their efforts to the initiative which has as its primary goal more money for lawyers who successfully prosecute malpractice cases. The initiative  would also impose random drug testing for doctors and require doctors to use a statewide data base when prescribing narcotic medication.

Steinberg's bill is less ambitious. His idea is to gather the parties together to work out a strategy that would be mutually satisfactory. Reasonable, you say? Not exactly because the lawyers aren't looking for a compromise on nickels and dimes and the doctors are dismayed about how much they already pay for malpractice insurance. Hence, a small increase in settlements as might be expected if non-economic damages were increased slightly or indexed for inflation doesn't interest the lawyers who, by the way, rejected a cost-of-living adjustment several years ago. Any increase in malpractice premiums doesn't sit well with the doctors whose incomes have been eroded over the last few years as managed care plans, HMOs, PPOs, and Covered California take over.

As for the statewide data base called CURES, just try to use it. Usually their phones if they have more than one go unanswered or the caller does not get the information requested. We've been advised that the database is underfunded and can't get the coverage it needs. So one of the first services to cut was knowledgeable persons answering phones.

It looks like both sides have stepped away from SB 1429, but, in theory, that could change under the proper circumstances. That would imply mutual  cooperation which at the moment does not appear likely in California's  House of Cards. SB 1429 lurks in the corner, a candidate for Gut and Amend.

Late Flash: the trial lawyers' initiative has now been designated Proposition 46 while the campaign against it will be known as the No on 46 Campaign. We will support No on 46 and advise our readers to do the same.

Thursday, April 24, 2014



The correct answer is when they are awake and can give consent. The next question is why aren't they already tested when they go to court especially when they represent known felons, drug traffickers, or persons indicted for murder? The correct answer is because lawyers write laws to suit themselves.

A medical tech who was reportedly addicted to drugs and who stole fentanyl that was expected to be used for patients awaiting cardiac surgery caused the death of two patients and got a few dozen others infected with hepatitis C when he altered the contents of their syringes, stole the fentanyl and replaced it with saline that turned out to be infected. That bloke is now doing 39 years in prison. As this man drifted from job to job, protected from having to reveal his erratic job history, he was protected by law. Wrongful administration of fentanyl was also associated with Michael Jackson's death. This time the culprit was a physician. Now comes an effort to correct this situation, an effort, we believe that is steeped in hypocrisy and swimming in money. 

In California we expect the Troy and Alana Pack Patient Safety Act to qualify for the initiative process. The goal is to alter MICRA's (Medical Injury Compensation Reform Act) $250,000 ceiling cap on non-economic damages so that malpractice lawsuits become more lucrative for trial lawyers. So far CAPP (Californians Allied for Patient Protection) have thwarted the trial lawyer's goal. Proponents point out that there is currently no law that requires doctors to take random drug tests. They don't mention that there is also no law that requires lawyers to take random drug tests. Proponents argue that surgeons don't have to be tested randomly before operations but imply that that should be done. The same proponents don't mention that lawyers who are trying to put someone to death or save someone from the hangman's noose are also not tested. Why not? Both the surgeon and the trial lawyer are involved in death-struggles although, truth be told, it's the lawyers who as prosecutors are allowed to strive to put someone to death and may win kudos for so doing. But now the lawyers, especially those whose specialty is malpractice, want to impose random testing on doctors while continuing to exempt themselves. The idea, they say, is to stop the abusive overprescribing that in the case of 10 year old Troy and his 7 year old sister, Alana, was linked to their being killed by a drugged driver who had overdosed on prescription medication.

Trouble is that this noble concept has been hijacked by the trial attorneys who for years have been trying to increase malpractice liability in the hopes of higher payouts and better paydays for themselves. A recent study by the Berkeley Research Group reported declining malpractice claims and lower awards. This trend would be turned around were the Troy and Alana Pack Safety Act enacted into law -- one estimate is that attorneys would win about $127,500 more on average than they do now were the initiative to succeed. That explains why the ballot summary for this initiative conceals the initiative's true purpose, not patient protection, but lawyer enrichment.

So why not amend the Troy and Alana Pack Safety Act so that it also includes lawyers, e.g., random drug testing for any lawyer within a few hours of a scheduled court appearance, or anytime a lawyer is arguing a death penalty case? Lawyers, from time to time, steal from client's trust funds, sometimes to support drug habits, so why not also test lawyers randomly?

Sometimes lawyers miss statutes of limitations. Test all of them who do that. Sometimes lawyers create false documents or prosecutors fail to turn over exculpatory data to defendants. Test all of them, too. In cases where a wrongful prosecution has led to wrongful imprisonment, why not skip the drug testing and have the prosecutor finish up the sentence that was wrongfully imposed on the hapless defendant? Some lawyers, some doctors, and even some judges benefit from loopholes in the system.

If we plug these loopholes by amending the Troy and Alana Pack Safety Act, then, just maybe, with a level playing field, the proponents would improve their credibility with the public. At the moment, the initiative is tilted more to trial lawyers' enrichment than to anybody's safety.

Late flash: the trial lawyers' initiative to award themselves increased malpractice payments has been designated Proposition 46 while the campaign against it, which we support, will be known as the No on 46 Campaign.