Wednesday, October 15, 2014




          Of all the issues in Proposition 46, an omnibus measure on next month’s ballot aiming to improve patients’ rights in several health care areas, money is the one that counts most.

          The central question boils down to this: Should victims of medical malpractice and their lawyers get rich, or should malpractice insurance companies stay rich?

          For one underlying reality caused by the state’s 38-year-old cap of $250,000 on the amount of pain and suffering damages any patient can collect when mistreated has been that insurance carriers like NorCal Mutual and The Doctors Co. got rich while patients often have no legal recourse no matter what’s happened to them.

          Even when juries come in with multi-million-dollar judgments in cases where patients have lost limbs or even their lives due to mistakes by their doctors, those amounts are routinely knocked back to $250,000 by judges in accord with the law. The only thing not limited is economic losses – lost wages and the like due to medical mishandling or negligence. Prop. 46 would raise the $250,000 limit to $1.1 million, indexing it to inflation afterward.

          So when a patient's history documents serious cardiac reactions to a particular drug in the past and a doctor still insists the patient take it, the penalty can’t go above $250,000 even if a drug reaction leaves the patient bedridden and disabled for years.

          The limit has had two meanings: Wronged patients usually can’t find lawyers to take their cases, since any substantial case will involve at least $100,000 in expert and witness fees, with attorney fees tacked on. Not much left of the $250,000 after that, so why bother?

          And insurance companies have profited greatly. One credible estimate puts their administrative expenses and pure profit at a total of about 70 cents from each dollar doctors pay for malpractice coverage. By contrast, 80 cents of every health insurance premium dollar in California, by law, must go toward paying claims. “That 70 cents leaves a lot of room for higher payments without rate increases,” says Jamie Court, president of the sponsoring Consumer Watchdog advocacy group.

          Sure, as the No-on-46 TV and radio commercials tell us, trial lawyers want to make more from malpractice cases. They’ve spent about $6 million promoting Proposition 46. But insurance companies have put up the bulk of the $58 million raised to fight the measure. The leading contributors? The Doctors Co. and NorCal Mutual, at $10 million each. Would these outfits ever spend so much if they didn’t feel their huge profit were threatened?

          So voters will decide if trial lawyers and a few malpractice victims get big chunks of cash, or whether the insurance companies keep on profiting.

          A peripheral Prop. 46 issue is drug-testing of doctors. Federal estimates are that 15 percent of practicing physicians have substance abuse problems, often controlled substances like Vicodin and Xanax, which they can easily access. With doctors numbering just above 30,000 in California at last report, this means about 4,500 are likely drug impaired at any given time. Yet, the state Medical Board disciplined only 326 over the last 10 years for drug abuse, an average of just 32 per year.

          So many surgeons now operate while on drugs, often narcotics. Thousands of other doctors make key decisions for their patients while drug impaired. Yet, the Medical Board can’t find them unless someone complains.

          Enter drug testing. All doctors would have to be tested randomly under Proposition 46, any with complaints getting tested right away. Those who test positive would see their licenses suspended until they at least begin rehab.

          This issue, says the ballot argument on the No side, is only included to distract voters from the main issue, money. Maybe so, but the state’s nonpartisan legislative analyst says random testing would lower costs related to drug abuse by many (unspecified) millions of dollars.

          Prop. 46 would also compel doctors to consult a statewide prescription database before writing new scrips. The aim is to keep drug abusers from “doctor shopping” for physicians willing to feed their drug habits. It also could stop doctors from running so-called “pill mills,” where they’re paid solely to write prescriptions for controlled substances.

          But money remains the central issue. The question of who gets rich or stays rich is now before the voters as baldly as it ever has been.

    Email Thomas Elias at His book, "The Burzynski Breakthrough: The Most Promising Cancer Treatment and the Government’s Campaign to Squelch It," is now available in a soft cover fourth edition. For more Elias columns, visit

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