Dan Walters: Malpractice measure given a misleading title

11/13/2013 12:00 AM

11/18/2013 10:36 AM

This is the official “title and summary” of a proposed 2014 ballot measure, as prepared by Attorney General Kamala Harris’ office:

“DRUG AND ALCOHOL TESTING OF DOCTORS. MEDICAL NEGLIGENCE LAWSUITS. INITIATIVE STATUTE. Requires drug and alcohol testing of doctors and reporting of positive test to the California Medical Board. Requires Board to suspend doctor pending investigation of positive test and take disciplinary action if doctor was impaired while on duty. Requires doctors to report any other doctor suspected of drug or alcohol impairment or medical negligence. Requires health care practitioners to consult state prescription drug history database before prescribing certain controlled substances. Increases $250,000 cap on pain and suffering damages in medical negligence lawsuits to account for inflation.”

A voter who is approached to sign petitions for this measure would naturally assume that its primary thrust is eliminating drug-addled doctors, and if it qualifies for the ballot, one can be certain that millions of dollars will be spent on its behalf to drive home that seemingly lofty goal.

In fact, however, its real aim is reflected very briefly in the final sentence – to modify the state’s 38-year-old cap on “pain and suffering” damages in medical malpractice cases.

The big money behind the measure, assuming it qualifies, will likely come from the state’s trial lawyers – attorneys who represent plaintiffs in malpractice and other personal injury cases.

Why? Because the big money in malpractice cases – and therefore the big contingency fees for lawyers – once involved “pain and suffering,” but that ended when Jerry Brown, in his first year as governor, signed the $250,000 cap, aimed at curbing soaring malpractice insurance rates.

The lawyers have been trying to repeal or modify the cap ever since, but have utterly failed due to adroit lobbying by their foes.

Wealthy businessman Robert Pack, whose son and daughter were killed in a collision with a driver who had been overprescribed with drugs, is the official sponsor of the initiative, and the lawyer lobby has not officially endorsed it. However, lawyers would be big winners should it pass.

A measure that would repeal or raise the cap or index it to inflation would face tough sledding with voters as medical providers and insurers spend millions to depict it as a lawyer money grab. Hence the other verbiage about druggie docs.

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?

Editor's Note: This story has been updated from print and online versions to clarify that Robert Pack lost a daughter and son in a collision with a driver who had been overprescribed with drugs.

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