06/17/2014

History repeats itself in MICRA malpractice fight


As the November election approaches, CDA members will be hearing a lot more about a ballot measure designed to raise the cap on the Medical Injury Compensation Reform Act (MICRA). CDA and a coalition of health care organizations are working to defeat the initiative that would have devastating effects on California’s health care system.

The initiative, called “The Troy and Alana Pack Patient Safety Act,” is backed by trial lawyers attempting to persuade voters to quadruple MICRA’s cap on noneconomic damages to $1.1 million. The initiative is expected to be assigned a proposition number for the ballot sometime in mid-July.

Regardless of its name or number on the ballot, veteran California dentists know there is much at stake, including patients’ access to care and the ability of providers to deliver care.

Don Schinnerer, DDS, past CDA treasurer and past TDIC chair, recalls the practice climate of 1975 and the skyrocketing professional liability insurance premiums that had dentists and other health care providers in a “panic.”

“We were planning a new dental complex, and by the time we broke ground in 1976, the price had doubled,” said Schinnerer, now retired, of his Dublin practice. “The construction loan was quoted for 9 percent, which was high for those times, and inflation was rampant. Between the dental liability companies and the trial lawyers, dental professionals were caught in a huge vise.”

As a new dentist in Modesto, Bruce Valentine, DDS, past CDA president, also shared the plight of dentists and other health care professionals.

“Between 1969 and 1975, my premiums tripled,” said Valentine. “They weren’t a lot then, but it caused concern and our rate projections showed a skyrocketing curve.”      

At the time, health care practitioners were experiencing steep increases in professional liability insurance due to frivolous lawsuits and huge monetary awards and attorney fees that were driving providers out of state. In direct response to this crisis, CDA created TDIC, The Dentists Insurance Company, so dentists would not be at the mercy of other professional liability carriers’ soaring annual premiums due to litigation of claims.

“Thanks to CDA and our dental leadership, TDIC was formed and came to our rescue,” said Schinnerer. “MICRA was capped at $250,000 and we survived.”

As a result of the Legislature’s passage of MICRA in 1975, a $250,000 cap on speculative, noneconomic damage awards reduced the incentives by trial lawyers to file meritless lawsuits. Under MICRA, injured patients are ensured fair compensation while stabilizing liability costs and protecting health care providers from extreme liability exposure. MICRA provisions also include unlimited compensation for all economic damages or out-of-pocket costs. Wages, medical costs and punitive damages are all paid on an unlimited basis and these payments have continued to go up at more than twice the rate of inflation.

In addition to raising the cap on noneconomic damages, the ballot measure contains additional provisions regarding drug testing of doctors and places infeasible requirements on the state’s prescription drug database, which backers admit were only included as the “ultimate sweetener” because they polled well.

“CDA and its coalition partners are aggressively working to ensure the public knows this measure is nothing more than an attempt by trial lawyers to pad their pockets with more money from frivolous lawsuits,” said CDA President James Stephens, DDS. “Even the state’s Legislative Analyst’s Office warns that the measure could increase state and local government health care costs by ‘hundreds of millions of dollars annually.’”

In addition, a study by Bill Hamm, a former legislative analyst, concluded the measure could increase health care costs across all sectors by $9.9 billion per year — or roughly $1,000 for an average family of four.

Schinnerer knows health care providers have a lot at stake in the November election, and he strongly urges CDA members to vote against the trial lawyer initiative.

“All health care professionals will need to work extra hard to hold the line on the trial lawyers’ attempt to increase the cap on MICRA.”

Valentine agreed, noting that dentists don’t want history to repeat itself if the cap on MICRA is increased.

“We’re going back to the same concern, and unfortunately, increasing the cap will increase costs throughout health care, affecting all patients in California.”

CDA and a coalition that includes physicians, hospitals, community clinics, business groups, the California Teachers Association, civil liberties groups, labor groups and local governments are committed to a statewide campaign, Stop Higher Health Care Costs, which will work to educate voters on why it is important to defeat this ballot initiative.

For more on how you can help the campaign, visit stophigherhealthcarecosts.com.