Government Overreach, Hurting Doctors & Proposition 46
California faced an important ballot initiative this year. As many victims of med mal know, there is an artificial cap on the amount that victims of medical malpractice can recover in lawsuits. Unfortunately for the same insurance companies that drafted the ACA for the Obama admin, if this Proposition 46 had passed, it would have stopped the process where the suffering of victims are being artificially capped by arbitrary standards, rather than the actual effects of what had happened to them, as it was under common law.
Having a pain and suffering standard of $250,000 in claims is based on a 1970s era formula that has not been raised in nearly forty years has virtually gutted the med mal law field. Beyond this, this amount has not kept track with inflation and can even be so low as to not even cover the amount of pain that a victim suffered.
A yes vote would have allowed for the limit to be raised to $1.1 million and to track inflation. Of course, the jury should decide the amount, not a statute, and this law basically would have AGREED the the state, and NOT the jury should decide damages. This would have been some comfort for those injured by others’ negligence.
After all, it is nearly impossible to find a med mal lawyer in California due to these low statutory amounts. By modernizing the way that lawsuits are adjusted, the ability for victims to seek higher compensation would have been protected. But alas, the progressive personal injury attorney bar overreached again.
The same people who think everyone should be able to smoke pot, with a “hands off my body” mantra, wanted to do forced drug testing on doctors, a traditional ally of many personal injury attorneys.
Had the personal injury lobby simply focused on raising or eliminating the MICRA limits, AND not placing a medical license in jeopardy for settling questionable cases in excess of $30,000.00, this would have passed in my humble opinion. But the bottom line here, limousine liberals lost, and created a new enemy, the very doctors who treat many of their clients on a lien basis.
Beyond this, there would have been common sense checks in the legislation to prevent future abuse by physicians. By making sure that health care providers would have checked a state prescription drug database, it could cut down on potential drug abuse and issues of drug interactions.
As discussed above, this would also have forced doctors to be tested for drug or alcohol abuse, allegedly reducing the chance of malpractice and errors. With the ACA already ravaging what is left of the medical field in California, this law’s passage would have probably seen the beginning of the end of good doctors in the Golden State.
If you or your family has faced severe injury or medical errors, you don’t want the government to stand in the way of recovery. Efforts like the defeat of Proposition 46 were a response to the personal injury lobby getting too big for their britches. Of course it is only right to oppose the government getting in between patients and their doctors, and the chances of getting compensation that is deserved after a tragic event.
“Unless we put medical freedom into the Constitution, the time will come when medicine will organize into an undercover dictatorship to restrict the art of healing to one class of Men and deny equal privileges to others; the Constitution of the Republic should make a Special privilege for medical freedoms as well as religious freedom.” – Dr. Benjamin Rush, signer of the Declaration of Independence.
Personal injury lawyers need to start thinking like Libertarians. Less government means more liberty and freedom. Laws like Obamacare limit the earning capacity of doctors and limit the choices of free people. Laws like Prop 46 serve to remedy the rights of victims while simultaneously hurting medical professionals. You cannot invite Dracula into your home and not expect to be bitten.
Patients that have suffered deserve better, especially in the light of medical malpractice errors. But at the same time, treating doctors like enemies, which is what 46 did, is surely not how Dr. Benjamin Rush would have proceeded in establishing a more perfect union. Defensive medicine is now more important than saving lives it seems.
