

The battle between doctors and trial lawyers grows more infantile

California initiative campaigns have a way of reducing all important public policy issues to their lowest intellectual denominators -- and highest financial numerators. The coming battle over the state's medical malpractice limits looks certain to set records in both categories.

We've written before about the necessity of modernizing MICRA, the Medical Injury Compensation Reform Act of 1975. Even its drafter acknowledges that it was botched at birth; because its limit of $250,000 on pain-and-suffering recoveries isn't indexed to inflation, it serves merely to shut the courthouse door to the victims of medical malpractice.

Because of inflation, that $250,000 would have had to rise to about $1.1 million today to have the same buying power it did in 1975. Alternatively, today's $250,000 would have been worth less than $58,000 back then. If you think that's enough to compensate for the loss in lifestyle from an avoidable medical error, ask yourself: What would you take? 

Advocates of raising the cap, including Consumer Watchdog, have chosen to go the initiative route to get the necessary changes made, and therein lies the problem. Their proposal, headed for the November 2014 ballot, combines a raise in the MICRA cap to $1 million, to be adjusted for inflation, with a mandate for random drug tests on doctors practicing in hospitals, along with other substance abuse-related provisions. This is a childish, unwarranted step that will have the effect chiefly of diluting the argument for raising the malpractice cap.

The California Medical Assn., not to be outdone in temperamental displays, is talking about a counter-initiative that would take a bite out of lawyers' fees in malpractice cases. 

The fight is shaping up as a duel between consultants, with millions of dollars in campaign funds destined to be shot down the rathole. The trial lawyers have the estimable Chris Lehane on the payroll. The CMA, as reported by the San Francisco Chronicle's Phillip Matier and Andrew Ross, has hired Sacramento consultant Gale Kaufman for its side. Its initiative proposal, if it's genuine, hasn't been made public; a CMA spokeswoman said only that Kaufman's been hired to defeat the Consumer Watchdog measure, which is in the signature-gathering stage. [Update: The CMA says it's not planning to pursue a counter-initiative.]

This is what happens when you legislate by initiative. An effort this summer to bring the lawyers and doctors together for a negotiated solution to the MICRA issue failed miserably, as everyone assumed it would. But neither proposed initiative meets the needs of California patients. 

Drug testing for doctors may or may not be a necessity. But if you were writing a bill to create a sensible program, you wouldn't do it through this initiative. For one thing, it's too scatter-shot; medical experts say that if there's a need for random testing of doctors, it's with surgeons and anesthesiologists, whose procedures are invasive and therefore especially dangerous if done while impaired. Imposing random testing on all hospital doctors is arguably an unnecessary imposition.

Another provision requires medical professionals to turn in any doctors they believe have a drug or alcohol problem. But whether "snitch" laws like this actually work is wide open to question.

In any event, the California Medical Board already has considerable authority to suspend and discipline doctors with substance abuse issues -- the initiative does almost nothing to enhance its enforcement.

The drug provisions look like they're in the initiative to threaten doctors into supporting a MICRA reform. Its backers deny that, but their real rationale almost looks worse. The drug rules are in the initiative because they poll well, and the backers figure that's the way to get the public to support the measure.

"It's the ultimate sweetener," says Jamie Court, the head of Consumer Watchdog. He says that when his group brought the proposal before focus groups, "the only thing that made them light up was drug testing of doctors." That's a pretty poor excuse for an initiative provision, and a reminder of what's wrong with the California system. If you think doctors should be drug-tested, make the case on its merits. If you think MICRA should be reformed, make that case. But to use the public's emotionalism about drugs to enact something completely different seems fundamentally manipulative and undemocratic. 

As for the CMA's anti-lawyer proposal, it's even more contemptible. The doctors know that the limited financial recovery allowed under MICRA sharply reduces patients' access to the legal system; reducing their lawyers' recovery would make things much worse. That's especially so because malpractice claims are always brought on a contingency basis, so the lawyers have to lay out all the costs of these very complicated and costly cases on the chance that a damage award will cover their costs.

MICRA itself is an artifact of the false notion that "frivolous" malpractice lawsuits are an underlying cost of rising healthcare costs. As we reported, that's a myth and always has been a myth. The idea is almost always advanced as an alternative to reforms that really would stem the rise in costs.

The burden of MICRA and its cousins in other states falls unequally on women and young children. It eliminates a crucial check on dangerous doctors -- the threat of effective litigation. When that's unaccompanied by oversight by an effective professional disciplinary system, as is the case in California, that's a double-whammy.

The right way to deal with MICRA is through the legislature, with a considered approach that recognizes the unfairness of the existing cap. Dealing with substance abuse by doctors also requires care -- not a focus group-driven popularity contest. What's needed least of all is two professions using the initiative process to hack at each others' hides, while the important issues remain unaddressed.

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