Leading consumer advocates today called upon the legislature to hold hearings and investigate strong new laws in response to recent Los Angeles Times reports on widespread drug overdoses due to physician overprescribing and the recent case of a convicted methamphetamine-using drug-dealing doctor who will be treating patients again within a year.
 
Consumer Watchdog asked the Governor and legislative leaders in a letter to consider random drug testing of physicians.  The advocates, who have already qualified one initiative measure for the next ballot to regulate health insurance rates, said that voters would not tolerate legislative inaction.

Click here to read the full letter.

The recent Los Angeles Times series, which uncovered 71 physicians whose prescriptions have led to three or more deaths, and the decision Friday by the state medical board to allow Dr. Nathan Kuemmerle to treat patients again after pleading guilty to felony drug dealing, prompted Consumer Watchdog to call for hearings and legislative action.

“The recent investigation and past decades of experience show that patients are not safe from drug using and drug dealing doctors,” wrote Consumer Watchdog’s Jamie Court and Carmen Balber. “One in ten physicians develop problems with drugs or alcohol over the course of their careers, yet continue to practice medicine. These physicians hold the lives of patients in their hands every day.”


”Pilots must undergo mandatory random drug testing because they hold the lives of so many passengers in their hands. Physicians who operate on patients and are in a position to overprescribe or use narcotics themselves should undergo similar mandatory random drug tests,” wrote the advocates. “Patients should not have to fear being treated or operated on by addicted physicians. Unfortunately, there is little deterrence to such malfeasance, as evidenced by the medical board’s restoration of Nathan Kuemmerle’s medical license.”

The letter also urged the Governor and lawmakers to consider moving authority for oversight and prosecution of over-prescribing to the pharmacy board, as is already the case in many states, to data mine information in the state’s prescription drug database to identify problematic prescribing patterns, and to strengthen the doctor disciplinary system and preventive measures to protect patients before they are harmed.

“Prescription drug abuse by physicians is something the public will not tolerate without a remedy that’s reasonable and effective. Though any action to detect and discipline dangerous doctors will undoubtedly bring protestations from the medical establishment, the small minority of physicians that overprescribe and use drugs need to be dealt with quickly and effectively to ensure the safety of California patients. Now is the time to act,” wrote the advocates. “An overhaul of the Medical Board is four decades overdue and necessary to protect patients.”

In President Obama’s speech, he threw a bone to the Right. Basically, he said that hew would be willing to follow up on some of W’s plans for experimental programs of limiting malpractice claims and adjusting insurance.  Since then (and before) he has said that he doesn’t think it will be a significant controller of costs.  And on that he’s right.

One of the principal myths surrounding medical malpractice is its effect on overall health care costs. Medical malpractice is actually a tiny percentage of health care costs, in part because medical malpractice claims are far less frequent than many people believe.

According to the Congressional Budget Office, malpractice costs amount to “less than 2 percent of overall health care spending. Thus, even a reduction of 25 percent to 30 percent in malpractice costs would lower health care costs by only about 0.4 percent to 0.5 percent, and the likely effect on health insurance premiums would be comparably small.”

I’ll go farther than the AAJ. Not only is it not medical malpractice law that is raising health care costs, it has actually far less than the CBO estimates.  You can see that costs are actually somewhat decreasing from the line chart up top (full PDF where I got these here), and the pie chart shows that medical malpractice premiums account for less than 1% of health care costs.

There are two reasons why Republicans love this stuff, neither of which have anything to do with the doctors “practicing their love“.  They are simply allies of convenience.  First, attorneys who represent victims of malpractice have traditionally been solid Democrats, and not just the voting kind, but also the giving great sums of money kind.  The Texas Democratic Party had become reliant on this money when Bush became governor by defeating Ann Richards. Trial Attorneys had been good friends of Richards, so taking on the trial attorneys in Texas made a great deal of sense for Bush. He was picking a fight with a group that had opposed him.

The other reason? Malpractice is bad for the bottom line of some big Republican donors. The American Medical Association has long aligned themselves with the Republicans, as have the corporations affected by tort law in general.  Medical malpractice reform has to be considered in the more general frame of tort reform

But as they say, as goes California, so goes the nation. And California led the nation in tort deform  Back in the 1970s, California enacted a bunch of legislation capping recoveries and generally limiting tort recoveries.  It was a defendant’s dream, and the big corporations who typically get sued a lot were right behind it pushing it along.

In the med-mal area, recoveries were limited to $250,000 of non-economic damages by the Medical Injury Compensation Reform Act (MICRA)  in 1975. Any damages that could not be proved up were thus capped, with no adjustment for inflation.  So, for example, a chid’s earning potential, as viewed by the law, is essentially zero, as they cannot be “proved.”  Even if the kid is singing in the womb, reading Shakespeare at age 2, and performing calculus at age 6, the damages for a lost child are too “speculative.” And thus any damages given to the kin of a child who was lost due to malpractice were non-economic and capped at $250,000.

That number hasn’t changed since 1975, and while it might have been possible for an attorney to make a decent living in 1975 at $250,000 per case, that is not the case today.  First there is inflation: $250,000 in 1975 is worth nearly a million today.  But even beyond inflation, trial costs are much higher today.  Expert witnesses now get astounding ($500-$1,000/hr) pay, and judges and juries now require more of this kind of testimony. Trials are very, very expensive.

And now, very few attorneys can afford to take these cases.  Even heartbreaking ones where families are left with nothing but a semblance of a shrine (Photo: Noah Berger / Chronicle):

Wayne Volkmuth learned what a “250 case” was while conducting research shortly after the loss of his 7-year-old son, Ryan, who died three years ago during a dental procedure at a Palo Alto clinic.

The “250” refers to $250,000, the most Volkmuth could recover in a medical malpractice claim over his disabled son’s death, a limit set 34 years ago by California’s landmark medical malpractice law. It’s also the reason his case was turned down by most of the dozen medical malpractice attorneys he and his wife consulted. (SF Chronicle 9/21/2009)

Insurance companies know how this works. They ssimply delay and delay, until any attorney who was willing to take the case figures out that the case is going to be a money loser.  And the result is this: the needless deaths of children and the elderly with no recourse whatsoever.

MICRA needs reform. At the very least, it needs to be adjusted for inflation.  But more than that, we need to restore the balance between the tort deform lobby and consumers.  Corporations and those with the biggest lobbying warchests win these fights, with stories like this as the end result.  Consumers are the ones who get screwed every time.  It is time to demand more from our legislators, both in Sacramento and DC.  Do not kowtow to those who simply waive cash. You represent the people, not the lobbyists. (See also ChangeCongress.org)

Tom Campbell, among all the Republicans in the gubernatorial field, has at least been willing to lay out detailed plans for how he would fix the state.  Typically this manifests itself as the same old Hooverism.  But his health care plan at least gets points for creativity.

GOP gubernatorial hopeful Tom Campbell released a unique health care proposal Thursday that would redistribute $42 billion in federal and state funds already spent on health care in California to buy private health coverage for everyone in the state who’s “involuntarily” uninsured.

Under the former congressman’s plan, the funds would cover an estimated 2 million such people in addition to the 7.6 million already receiving public health coverage under the state Medi-Cal and Healthy Families programs.

“The astounding conclusion,” Campbell writes in his proposal, “is that, using only the money already being spent by the federal and state governments for health care in California, we could buy free market health insurance currently available and cover all involuntarily uninsured in California, and still have more than $700 per person left over!”

Instead of dedicating funds to services for the poor or children, Campbell would split the state into regions, and allow insurers to bid against one another to cover everyone in that region who earned below a certain level, along with everyone denied coverage for a pre-existing condition.  Insurers wouldn’t bid on price, but quality of coverage – the money would be fixed, and insurers would bid against each other based on what they would cover and at what rate.

I’m wondering why any insurer would bid for this right.  They deny people with pre-existing conditions because they are more likely to use health care, increasing their medical loss ratio.  And the poor are more likely to need health care treatment based on lifestyle and environment.  And the kicker to Campbell’s plan is, if nobody bids, the status quo would remain in place for that geographical area.  So basically, Campbell is touting a big plan that would do… nothing.  And he wouldn’t embark on it if the federal government enacts their own plan.

Mavericky!

Really, that interesting, if impossible (try getting a federal waiver to set it up and face Congressmembers with interests in protecting SCHIP and Medicaid), proposal is a cover for Campbell’s apparent agenda – to permit the interstate sale of insurance and to bring up the canard of tort reform as a panacea.  Medical malpractice is an insignificant percentage of total health care costs and states which have embarked on major medmal reform, like Texas, have seen no change in health inflation.  As for the interstate sale of insurance, you can do it now – only you’re responsible to comply with the laws of the state in which you sell.  This proposal would allow insurers to only be responsible to the regulations of the state where they are based.  Tom Campbell wants to do for the health insurance industry what this kind of proposal did for the credit card industry – send all insurance companies to a small state with no regulation, and gut all state-based regulation in the process, leaving California’s insurance customers at the mercy of the laws of South Dakota or Mississippi.

To his credit, Campbell wants to remove the anti-trust exemption on the insurance industry.  But really, that’s a means to an end here.  However, there is a point of consensus between conservatives and liberals to do away with the McCarran-Ferguson Act, that offers that anti-trust exemption.  Bills to this effect were just introduced in Congress.  If Campbell wants to talk them up to the California GOP delegation, go ahead.