California ballot measure on medical malpractice certain to spark controversy, national interest

The 2014 campaign season in California has unofficially kicked off with the filing of two high-profile ballot initiatives sponsored by deep-pocketed backers with the wherewithal to qualify them for the November 2014 ballot. 

One, a measure to increase a nearly 4-decade-old cap on medical malpractice awards, is certain to trigger a free-spending battle between doctors and trial attorneys, who are being joined by a wealthy Silicon Valley businessman-- one of the founders of the Internet service provider NetZero. 

A second measure was filed by the California Hospital Association, the trade group that represents more than 400 hospitals in the state. It seeks to force the state government to spend all of the $3 billion in annual revenue from a Medi-Cal provider tax on health care services for the poor. Currently, about 20 percent of those revenues are being used for other purposes. 

Since California ballot initiatives often herald national trends, both measures will be under a spotlight.

The measure to alter the state's 1975 Medical Injury Compensation Reform Act, or MICRA, is certain to spark the most controversy. 

It is sponsored by tech executive Bob Pack, who nine years ago lost a young son and daughter after a driver who was high on prescription drugs, ran off the road and struck them as they walked on the sidewalk. 

The 1975 legislation, signed by Gov. Jerry Brown during his first term, capped the amount of noneconomic damages -- so-called "paid and suffering" awards -- in malpractice lawsuits at $250,000. That figure has not been adjusted since. 

The proposed initiative would increase the cap to $1.1 million, which proponents say is today's inflation-adjusted equivalent of the limit established 37 years ago. 

In addition, the measure would require that doctors with hospital privileges be subjected to random drug and alcohol testing and also mandate that all doctors use a statewide database to determine whether a patient seeking narcotic medications already has received similar prescriptions from other doctors. 

In the immediate wake of his family tragedy, Pack helped to develop that database, called CURES. Use of the database is now voluntary. 

"This ballot measure begins to even the balance of power for innocent patients who are being victimized by medical negligence," Pack said in a statement released July 24 by the measure's co-sponsor, the advocacy group Consumer Watchdog. 

An opposition group led by doctors and other medical providers immediately denounced the proposal. "The measure is nothing more than a self-serving attempt by trial lawyers to generate more in legal fees," said Dr. Paul Phinney, president of the California Medical Association. 

Carmen Barber, spokeswoman for Consumer Watchdog, said the measure is needed so "doctors who harm people can be held accountable." 

Barber noted that a separate initiative to impose rate regulation on health insurance policies already is slated for the November 2014 ballot. It also is sponsored by Consumer Watchdog and was targeted for the 2012 ballot, but got moved back because its petition signatures could not be verified in time to meet the 2012 deadline. 

"2014 is shaping up to be the year of the patient in California," she said. 

The measure related to Medi-Cal is not likely to generate as much controversy, but hospital officials say it is necessary to force the governor and the Legislature to live up to the terms of a 2009 deal in which hospitals agreed to allow themselves to be assessed a provider tax as a means to bring more federal health care dollars into the state. 

By paying the tax, hospitals provide the revenue for state matching funds that allow California to access an additional $2 billion a year in federal support for Medi-Cal. California Hospital Association spokeswoman Jan Emerson-Shea said the deal envisioned that the entire $5 billion would be plowed back to hospitals that treat Medi-Cal patients, but the Legislature has subsequently appropriated $620 million for other uses. 

(Contact staff writer Timm Herdt of the Ventura County Star at therdt@vcstar.com. Distributed by Scripps Howard News Service at www.shns.com)

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