Mandatory Alcohol and Drug Testing for Doctors: What Does This Have to do With MICRA??

by
  • Poage, Jeffrey, MD
| Nov 18, 2013

Here’s the scoop:
MICRA, or the Medical Injury Compensation Reform Act, has been around a long time. Every few years, the trial attorneys get together and think of ways to change the MICRA provisions in their favor. In particular, they dream of lifting the limits on “pain and suffering,” otherwise known as non-economic damages. Why? Because 1) there is a cap of $250,000 on such damages, and 2) MICRA limits attorneys’ fees so patients, not lawyers, receive more from awards. In fact, the only change in MICRA since its inception in 1975 was a victory by trial attorneys to increase their fees through the MICRA payout schedule. In past years, attempts by trial lawyers to weaken MICRA have failed. Moreover, in 1985 the California Supreme Court upheld the constitutionality of MICRA.

So what’s a group of trial lawyers to do?
Let’s think about this. If I were a trial attorney, I might promote an initiative with provisions to raise the cap on “pain and suffering” to $1.2 million, with a cost of living adjustment (COLA). But wait, we’ve tried this in the past and failed. I know! Let’s come up with something nice and juicy to distract voters from the real goal. How about an initiative to protect voters from alcohol- or drug-impaired physicians? Plus we’ll require doctors to report other doctors who are impaired by drugs or alcohol!

Is physician impairment really a problem?
Doesn’t matter. Trial attorneys want voters to associate doctors with something bad and not think about lawyers trying to increase their portion of malpractice awards. In fact, they framed the whole thing as a Patient Safety Initiative! This way, trial attorneys make themselves appear to be all about patient safety, while protecting the voters from “bad” doctors! But first, they will need to find someone with a tragic story to take the message to the voters.

Thus, The Troy and Alana Pack Patient Safety Initiative was born. This ballot initiative, sponsored by Consumer WatchDog, was approved last week by the State Attorney General’s office for circulation. As reported in the Sacramento Bee: “One can certainly grasp why the measure’s sponsors want to hide the pea, but why would the attorney general’s office abet the subterfuge by providing a bogus “title and summary?” Could it be that Harris counts the trial lawyers among the deep-pocket interests who might help her become governor or otherwise climb up the political ladder? She wouldn’t be that cynically self-serving, would she?”

Read more: Dan Walters: Malpractice measure given a misleading title

Who are Troy and Alana Pack?                                          
I know because I live in Danville where the horror unfolded ten years ago. These two children (brother and sister, ages 10 and 7) were struck and killed by a vehicle driven by Jimena Barreto, who fled the scene and was arrested two days later. Barreto was an intoxicated nanny, not a physician, as some voters might be led to believe by the proposed ballot initiative. In addition to alcohol and cocaine abuse, the nanny had multiple prescriptions for painkillers and muscle relaxants from multiple doctors at a local Kaiser hospital.

Bob Pack, Troy and Alana’s father, claimed he was victimized twice, once by the tragic accident and again by MICRA. Pack went on to champion the Controlled Substance Utilization Review and Evaluation System (CURES) legislation, recently signed into law by Governor Brown. The online system will make it easier for authorized prescribers and pharmacists to quickly review controlled substance information via the automated Patient Activity Report (PAR) in an effort to identify and deter drug abuse and diversion through accurate and rapid tracking of Schedule II through IV controlled substances. We applaud Bob Pack for his efforts and can only imagine the pain his family endured

With regard to Pack’s ballot initiative, however, we have to look at the facts. MICRA only limits those intangible harms that cannot be quantified by a specific dollar amount. MICRA allows UNLIMITED damages for any and all past and future medical costs, lost wages, lifetime earning potential and malicious or willful misconduct. The reasonable damage cap of $250,000 reduces incentives to file meritless lawsuits, while at the same time allowing legitimate claims to move forward. And what’s important to know is this: Despite MICRA, malpractice awards to patients are still going up at a rate more than two times inflation!

Who supports MICRA?
Over 800 prominent groups who believe the current laws work to fairly compensate patients while lowering health care costs while improving access to care.

How do they know this? In the early to mid-1970s, insurance premiums were skyrocketing because of record malpractice awards. Many hospitals and community-based health care clinics were faced with closure as the possibility of operating without insurance coverage became imminent. As physician malpractice rates more than tripled, anesthesiologists and surgeons in Northern California staged a “walkout,” refusing to handle any patients except for emergency cases. The crisis went on for weeks.

On May 13, 1975, hundreds of doctors, nurses and health care personnel marched on the State Capitol. A much younger Governor Brown called for a special legislative session, which convened three days later. Shortly thereafter, MICRA was conceived and signed into law.

Today, MICRA remains a model for medical liability tort reform for the entire country. What would have happened without MICRA? Take a look at New York’s hostile malpractice environment, where nearly one million people in 19 counties have no access to OB-GYN’s, because there are none!

Since the cap of $250,000 was set 38 years ago, why not adjust for inflation and bring it up to $1.2 million?

An analysis by William Hamm, California’s former independent legislative analyst, found simply doubling the cap to $500,000 could increase health care costs for consumers and taxpayers by nearly $10 billion annually. The current legislative analyst, Mac Taylor, stated changes in MICRA could cost the state and local governments hundreds of millions of dollars.  

It’s simple: consumers and taxpayers would pay more so trial attorneys can make more money.

In a recent SF Chronicle op-ed piece, Kathy Kneer, President and CEO of Planned Parenthood of California, and Richard Throp, MD, CMA President, summed it up well:

“A broad coalition of doctors, nurses, hospitals, Planned Parenthood, community health centers, local governments, labor unions and hundreds of other organizations strongly oppose the trial lawyers' measure and will mount a vigorous campaign to defeat it. At a time when California is expanding access to care for millions of patients, the last thing we need is more lawsuits, higher health care costs, and fewer doctors, community health centers and medical providers.”

Fortunately, we have people like Californians Allied for Patient Protection (CAPP), whose mission is to protect MICRA To learn more about their efforts to preserve MICRA, visit the CAPP website, www.micra.org.

What can you do to help?
Support the CSA and its advocacy efforts, including preserving MICRA and supporting physician-led anesthesia care, by donating to GASPAC. In the past few months, members of the CSA’s Legislative and Practice Affairs Division have met with key state legislators in Sacramento, Los Angeles and Northern California. These are focused, small group events with an important mission: to educate our elected officials about the vital role physician anesthesiologists play in caring for patients, not only in the OR, but throughout the hospital or surgery center experience, and how our field has contributed to patient safety and quality initiatives that make a difference. I assure you: your voice is being heard.

Of course, the CSA will continue to work with the California Medical Association and its component societies, as well as the CAPP group, to monitor the attack on MICRA and other vital issues of concern to all physicians. More to come...

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