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CMA receives Profile of Excellence award for Prop 46 campaign

Court rules against constitutional attack on MICRA

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Election day is just two weeks away - Vote NO on Prop. 46!

In just two weeks, California voters will be weighing in on Proposition 46, the trial lawyer's ballot initiative that would quadruple the state’s Medical Injury Compensation Reform Act (MICRA) cap on non-economic damages. If lawyers get their way, medical lawsuits and jury awards will skyrocket – leading to a big increase in health care costs. It is critical that every single physician in California votes NO on Prop. 46 on Election Day.

Vote-by-mail ballots were mailed out by the state last week. If you vote by mail (also known as "absentee"), please don't wait until the last minute to vote No on 46. Missing the voting deadline is one of the main reason absentee ballots aren't counted. Mail in your absentee ballot today.

If you aren't already signed up to vote-by-mail, and would like to do so, the deadline to request a vote-by-mail ballot is October 28. You can do so online at the Secretary of State (SOS) website. If you are not registered to vote, the deadline to do so is October 20. You can register online at the SOS website.

There's still time to order free campaign materials for your office, including buttons, bumper stickers, brochures and more. To order campaign materials, please visit www.NoOn46.com or email Juli Reavis at jreavis@cmanet.org.

You can also show your neighborhood that you oppose Prop. 46 by putting up a yard sign. Pick up a No on 46 yard sign at a location near you.

The California Medical Association (CMA) has also published its 2014 Voter Guide, with information on CMA's position on the propositions and candidates on the November 2014 ballot. You can download the guide at http://cal.md/2014-voter-guide.

To learn more about Prop. 46, visit www.NoOn46.com.

No on Proposition 46 campaign releases first video online

Today, the “No On 46” campaign released its first campaign video on multiple online platforms.

Titled “The Truth about Proposition 46,” the two-minute video features real practicing physicians and medical students from across the state discussing the flaws, costs and potential harmful consequences to patients and California’s health care system, if Prop. 46 were to pass.

The video highlighted many of Prop. 46’s major flaws including, but not limited to, the fact that the initiative is written and paid for almost exclusively by trial lawyers who will personally profit from the measure, that the initiative would cost taxpayers hundreds of millions of dollars annually by quadrupling the limit on medical malpractice awards in California and that the increased costs associated with the measure could cause doctors and medical specialists to reduce services or leave the state. Prop. 46 would also threaten personal privacy by requiring a massive expansion of the use of a government-run prescription drug database without any additional security safeguards.

The video also sheds light on the fact that the proposition is disingenuous, noting that the physician drug testing provision was only “inserted as a sweetener” in an attempt to achieve the measure’s true intent: increasing the cap on medical malpractice awards.

“Californians have a long and well-documented history of rejecting ballot measures that are either dishonest to voters or too burdensome for taxpayers,” said Gale Kaufman, Senior Strategist for the No on 46 campaign.  “Proposition 46 is a double whammy – it’s both deceptive and costly.  This video represents a powerful opening argument in the very strong case against this year’s most reckless ballot measure.”

The video can be viewed online at http://youtu.be/nqyIP9NaLYg or below.

CMA files brief with CA Supreme Court in case that could undermine MICRA's longstanding definition of professional negligence

The California Medical Association (CMA), together with other amici, has filed a brief with the California Supreme Court, urging reversal of an appellate court opinion that thwarts the long-standing definition of "professional negligence" in California's Medical Injury Compensation Reform Act (MICRA). The ruling, if allowed to stand as precedent for future cases, could be misused to undermine the goals of MICRA and adversely affect the entirety of the health care system and safety net in California.

In this case, Flores vs. Presbyterian Intercommunity Hospital, a hospital inpatient sued for injuries she allegedly sustained from a fall when her hospital bed rail collapsed. The appeals court ruled that the negligence did not occur in the rendering of professional services and as such was subject to the two-year statute of limitations for ordinary negligence rather than the one-year statute of limitations for professional negligence.

CMA’s brief points out that under the long-standing definitions in MICRA, professional negligence includes any act or omission by a health care provider in the rendering of professional services for which the provider is licensed. Despite this clear definition and the fact that the provision and maintenance of safe hospital beds is a service for which hospitals are licensed, the Court of Appeal’s opinion failed to even address the pertinent licensing laws and regulations.

CMA's brief argues that the rule plaintiff proposes – that MICRA should be limited to conduct requiring specialized medical skills – is contrary to statutory intent as evidenced by the statutory language, longstanding decisional authority, and legislative history.

Read the brief here.

MICRA, California’s landmark professional liability reforms, have for nearly 40 years fairly compensated injured parties while protecting access to care for Californians. For more information on MICRA, visit www.cmanet.org/micra.

Contact: CMA's legal information line, (800) 786-4262 or legalinfo@cmanet.org.

California Democratic Party to remain neutral on Prop. 46

Backers of Proposition 46, the MICRA lawsuit measure, were dealt another severe blow this weekend when, despite their intense lobbying, the Executive Board of the California Democratic Party rejected their efforts to gain an endorsement, instead voting to remain neutral.

Over the course of the three-day meeting, Democratic Party leaders and activists who reviewed Prop. 46 found that, if the initiative were to pass, health care costs would go up, access to care would go down, community clinics would be harmed and personal privacy will be put at risk.

Understanding its potentially devastating effects, traditionally Democratic groups such as the American Federation of State, County and Municipal Employees (AFSCME), Service Employees International Union (SEIU), the California Teachers Association, Planned Parenthood and the American Civil Liberties Union (ACLU) have all opposed Prop. 46, and advocated against the measure throughout the weekend, helping secure the neutral position. These groups were also joined by physicians, medical students and health care providers from around the state, each of whom would have their practices threatened by the flawed and deceptive Prop. 46.

More information about Prop. 46’s dangerous impacts, as well as a list of the unprecedentedly broad coalition opposing the measure, can be found at www.NoOn46.com.

CMA files brief with California Supreme Court in MICRA constitutionality case

The California Medical Association (CMA), along with the California Dental Association and the California Hospital Association filed an amicus brief with the California Supreme Court urging the common sense application of our state’s landmark Medical Injury Compensation Reform Act (MICRA), which allows non-economic damage awards up to $250,000 and unlimited economic damage awards for all past and future medical costs, lost wages and earning capacity. This case is just the latest in many legal challenges to MICRA that have been funded by trial lawyer groups from across the country.

In this case, Rashidi v. Moser, M.D., the plaintiff settled with two defendants and then went to trial against the physician. The jury awarded the plaintiff $125,000 in economic damages and $1,325,000 in non-economic (subjective pain and suffering) damages. After trial, the trial court judge reduced the non-economic damages portion of the award to $250,000, in accordance with MICRA.

The plaintiff appealed, asserting that MICRA’s cap on non-economic damages (Cal. Civ. Code 3333.2) violates California's constitutional guarantees of trial by jury, separation of powers and equal protection of the laws. The Second District Court of Appeal rejected all of plaintiff’s constitutional arguments and found that MICRA’s non-economic damages cap does not interfere with the jury’s decision, applies equally to all plaintiffs and represents a proper exercise of legislative authority.

The court also held that MICRA’s non-economic damages cap is to be applied before offsets from pre-trial settlement proceeds. In this case, plaintiff reached pretrial settlements totaling $2,350,000 with the hospital and medical device manufacturer, an amount significantly higher than the total amount of damages found by the jury at the later trial. Relying on the language of the MICRA statute, the appeals court noted that MICRA prohibits a plaintiff from recovering more than $250,000 in non-economic damages from all health care providers in the same action and does not distinguish between settlement dollars and court judgments; rather, MICRA addresses a plaintiff’s total recovery for non-economic damages. Accordingly, the court held that MICRA’s non-economic damages cap is to be applied first before offsets from settlement proceeds, thereby preventing the circumvention of the MICRA statute.

The plaintiff has appealed the appeals court ruling to the California Supreme court, arguing that the “damages” limited by Civil Code section 3333.2 only include those damages awarded by a jury. In other words, the plaintiff argues that while any jury award is limited to $250,000 in non-economic damages, a plaintiff can recover more than $250,000 in non-economic damages if some of that recovery comes from settlements with professional negligence defendants. The plaintiff also asked the high court to review the appellate court’s ruling on MICRA’s constitutionality, but the Supreme Court declined to do so, expressly limiting its review to section 3333.2’s application to settlement proceeds.

In its brief, CMA urges the state's high court to affirm the Court of Appeals' common-sense approach. The brief argues that Section 3333.2 establishes a limitation on the total amount that a plaintiff may recover for non-economic damages from all health care provider defendants as compensation for injury caused by professional negligence. "To hold otherwise would obliterate MICRA’s purpose of reducing the costs of health care litigation," the brief states. "Plaintiff’s interpretation would result in health care providers’ liability and plaintiffs’ non-economic recovery being dependent on whether particular defendants settle or proceed to trial, introducing volatility into a statutory limitation intended to stabilize such awards."

Click here to read CMA's brief.

Contact: CMA legal information line, (800) 786-4262 or legalinfo@cmanet.org.

MICRA lawsuit measure assigned proposition number

The unprecedentedly broad and diverse coalition working to defeat the trial lawyers’ MICRA lawsuit measure is now officially the “No On 46” campaign, following the assignment of proposition numbers to qualified ballot measures by the Secretary of State’s Office on Monday.

If approved by voters, Proposition 46 would increase health costs, reduce access to care and threaten patient privacy, all to make it easier and more profitable for lawyers to sue doctors and hospitals. In addition to increasing the overall number of medical lawsuits and the cost of health care across the board, Proposition 46 contains a number of unrelated provisions designed to mislead and deceive voters – including a little-discussed mandate relying on a massive expansion of a government-run prescription drug database, which third-party analysts say cannot be implemented as written and will leave personal medical information vulnerable to privacy breach.

For these reasons, health providers, education groups, labor unions, business organizations, working men and women, and community clinics have all announced their opposition to Proposition 46.

On Monday, two additional groups – the State Building and Construction Trades Council of California (SBCTC) and the California NAACP – joined the “No On 46” campaign, pointing out the devastating effects it would have on California.

“This initiative will cost state and local governments hundreds of millions dollars and raise health costs for everyone,” said Robbie Hunter, President of the SBCTC. “That hurts job creation and will negatively impact California’s future.”

According to California’s independent Legislative Analyst, the proposed measure could increase state and local government health costs by “hundreds of millions of dollars annually.”

“This measure is terribly flawed and will reduce access to quality health care for underserved communities,” said Alice Huffman, President of the California NAACP. “At a time when we’re working hard to cover as many Californians as possible under the ACA, Proposition 46 takes us in the wrong direction. Proposition 46 will disproportionately hurt minority communities. It’s bad medicine for California.”

These two organizations join the growing list of California public entities and private organizations that have announced their formal opposition. For a complete list, please visit the campaign website, www.noon46.com.

California Teachers Association joins campaign to defeat MICRA lawsuit measure

The California Teachers Association (CTA), the nation’s largest statewide teacher organization and one of the state’s leading voices for public education, has announced its opposition to the MICRA lawsuit initiative.

This addition makes CTA the latest major organization to join the historically-broad and bipartisan coalition of California organizations lining up to oppose the measure. CTA joins a growing list of California public and private organizations – including physicians, health providers, community clinics, civil liberties advocates, school boards, labor unions and business groups – that have expressed concerns about the ballot measure's impact on costs, patient access, underserved children and California’s overall health delivery system.

“At a time when California is finally getting school funding back on track and paying back students after years of drastic budget cuts, the last thing public education needs is to be forced to foot a brand new bill for unregulated health care costs,” said CTA President Dean E. Vogel. “This is a costly and harmful initiative that our students and schools can’t afford.”

According to California’s independent Legislative Analyst, the proposed measure could increase state and local government health costs by “hundreds of millions of dollars annually.”

A complete list of the organizations opposing the MICRA lawsuit measure can be found here.

CMA files brief in case challenging the constitutionality of MICRA

The California Medical Association (CMA), together with the American Medical Association (AMA), has filed an amicus brief supporting the constitutionality of the non-economic damages cap of California's landmark Medical Injury Compensation Reform Act (MICRA). This appeal is the latest in a protracted line of cases challenging MICRA's constitutionality since the Legislature enacted the statute in 1975. The California Supreme Court has previously upheld the constitutionality of MICRA's cost saving provisions, including MICRA's $250,000 cap on non-economic damages.

Despite Supreme Court precedent, after a trial court reduced the non-economic damages awarded in a medical negligence case to $250,000, the plaintiff appealed, challenging MICRA's constitutionality once again. The plaintiff argues that in order to ensure access to justice, California needs more malpractice lawsuits. The plaintiff asserts that the potential for “low” awards dissuades contingency-fee lawyers from taking such cases, making the limitation on non-economic damages unconstitutional. The plaintiff also argues that Section 3333.2 of the Civil Code violates the right to damages awarded by the jury and that MICRA is obsolete.

In their brief, CMA and AMA argue that to strike down MICRA would contravene decades of California law, directly violate Supreme Court precedent and contradict the Legislature’s stated purposes in enacting the limitation on non-economic damages. CMA and AMA explain that to adopt plaintiff's line of reasoning would be to reintroduce the very volatility that MICRA was enacted to prevent and would only serve to increase the costs of medical negligence litigation, thereby threatening access to affordable health care for all Californians. The brief also argues that the plaintiff  does not have a right to a certain measure of damages and the courts may not invalidate legislation by second-guessing whether the legislation is adequately serving its purpose. The appeals court is expected to schedule the case for oral argument in the coming months.

Read the brief here.

Contact: CMA legal information line, (800) 786-4262 or legalinfo@cmanet.org.