Tag Archives: Health Care Law

Medical Malpractice

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Medical Malpractice in California

Ballot Measure: Proposition 46

by Ben Adlin

A 39-year-old limit on medical malpractice damages doesn’t translate easily to a 30-second campaign spot. But a confluence of frustration, tragedy, and political bargaining has California consumer attorneys hopeful that Proposition 46 on November’s ballot is their best attempt yet to lift a cap on noneconomic damages that they say unfairly stymies victims.

The measure – which spawned one of the nation’s priciest electoral contests this year, with more than $67.5 million donated in support and opposition by September – is a mishmash. It would quadruple the damages cap to $1.1 million and add an inflation adjuster; it would require doctors to check patients’ narcotics prescription histories; and it would mandate drug testing of doctors. Advocates say the three prongs are equally important, but some have acknowledged they hope the last element would finally turn a long-running battle over damages in their favor.

The fight began in 1975, when Gov. Jerry Brown signed the Medical Injury Compensation Reform Act, or MICRA, capping noneconomic malpractice damages at $250,000 after a spike in insurance rates led some doctors to suspend services to all but emergency patients. (See Cal. Civ. Code § 3333.2(b).) Providers blamed plaintiffs lawyers for the rate increases. Tort lawyers blamed the hikes on insurers’ efforts to recoup unrelated investment losses. They challenged MICRA from the start as unconstitutional, lobbied legislators, and supported reform-minded candidates.
Similar arguments from both sides show up in this year’s campaign literature. But University of Pennsylvania law professor Tom Baker says neither explanation is right: The spike was a market correction after insurers competed too vigorously and found themselves short on cash to pay claims.

October 2003 was a turning point for lawyers fighting the cap. Just as they were closing in on success in the Legislature, they lost a key ally when Gov. Gray Davis was recalled. But they gained important champions after two young children were killed in Danville by a driver high on prescription drugs. When the grieving parents, Bob and Carmen Pack, consulted lawyers about suing Kaiser Permanente for negligence, the first nine refused their case, citing the cap on noneconomic damages. In addition, economic damages for victims with low incomes – or none, like children – may be reduced to zero. “Damages caps are a blunt instrument,” says Stanford University law professor Nora Engstrom. “They’re bad at what they purport to do, and they have terrible side effects.”

Bob Pack became a prominent spokesman for raising the cap. The former America Online executive, who co-founded Internet provider NetZero, also created the online version of a database where California doctors can check patients’ prescription records. And he got the Consumer Attorneys of California and the nonpartisan Consumer Watchdog to back requiring clinicians to use it.

The drug testing prong of Prop. 46 was added in part because it played well with likely voters and in part because supporters realized it could be awkward for the medical industry to oppose. “Most people don’t know that doctors aren’t drug tested and are appalled,” says Jamie Court, Consumer Watchdog’s president. Still, providers argued that raising the cap would be too costly.

And opponents of the measure, who have raised more than seven times as much money as supporters, are running ads that lean heavily on antipathy toward lawyers. They were particularly angry about the summary that Attorney General Kamala Harris’s office wrote for signature-gathering petitions because it gave top billing to the measure’s drug testing provision. “Harris intentionally deceived ballot signers by highlighting one of the fig leaves that trial lawyers attached to the measure to hide their real intent,” a San Diego newspaper editorial declaimed. A Field Poll in early September found the tide turning against the measure, with just 34 percent of likely voters in favor.

Medical Malpractice

Welcome to the California legal encyclopedia's introductory part covering the medical malpractice laws of California, with explanations of the various implications of medical malpractice in California and the statutes enforced in California in connexion with medical malpractice. This introductory section covers case law related to medical malpractice in California, the legal approach on medical malpractice in the United States and related topics. The information below provides an California-specific general overview of the legal regime of medical malpractice in California.

Medical Malpractice in relation to Health Care Law

This section analizes the legal issue of medical malpractice in this context.

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Hearings

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Hearings in California

Disciplinary Investigations, Hearings and Sanctions

Welcome to the California legal encyclopedia's introductory part covering the disciplinary investigations, hearings and sanctions laws of California, with explanations of the various implications of disciplinary investigations, hearings and sanctions in California and the statutes enforced in California in connexion with disciplinary investigations, hearings and sanctions. This introductory section covers case law related to disciplinary investigations, hearings and sanctions in California, the legal approach on disciplinary investigations, hearings and sanctions in the United States and related topics. The information below provides an California-specific general overview of the legal regime of disciplinary investigations, hearings and sanctions in California.

Disciplinary Investigations, Hearings and Sanctions in relation to Health Care Law

This section analizes the legal issue of disciplinary investigations, hearings and sanctions in this context.

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Licensed Occupation

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Licensed Occupation

California Licensed Occupation

This section covers California-specific basic information on licensed occupation and related topics. Many of California's laws on licensed occupation are similar to those of other U.S. states, with some differences (in some cases, minor differences). California licensed occupation laws on licensed occupation are created and revised by the actions of lawmakers and the courts. Use the cross-references and topics below to learn more about California statutes and laws on licensed occupation, which is a basic matter in California law.

Licensing and Scope of Practice; Unauthorized Practice of Medicine

Welcome to the California legal encyclopedia's introductory part covering the licensing and scope of practice; unauthorized practice of medicine laws of California, with explanations of the various implications of licensing and scope of practice; unauthorized practice of medicine in California and the statutes enforced in California in connexion with licensing and scope of practice; unauthorized practice of medicine. This introductory section covers case law related to licensing and scope of practice; unauthorized practice of medicine in California, the legal approach on licensing and scope of practice; unauthorized practice of medicine in the United States and related topics. The information below provides an California-specific general overview of the legal regime of licensing and scope of practice; unauthorized practice of medicine in California.

Licensing and Scope of Practice; Unauthorized Practice of Medicine in relation to Health Care Law

This section analizes the legal issue of licensing and scope of practice; unauthorized practice of medicine in this context.

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Organizations Law

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Organizations Law in California

Organization and Administration

Welcome to the California legal encyclopedia's introductory part covering the organization and administration laws of California, with explanations of the various implications of organization and administration in California and the statutes enforced in California in connexion with organization and administration. This introductory section covers case law related to organization and administration in California, the legal approach on organization and administration in the United States and related topics. The information below provides an California-specific general overview of the legal regime of organization and administration in California.

Organization and Administration in relation to Health Care Law

This section analizes the legal issue of organization and administration in this context.

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Death

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Death

California Death

This section covers California-specific basic information on death and related topics. Many of California's laws on death are similar to those of other U.S. states, with some differences (in some cases, minor differences). California death laws on death are created and revised by the actions of lawmakers and the courts. Use the cross-references and topics below to learn more about California statutes and laws on death, which is a basic matter in California law.

California Death

This section covers California-specific basic information on death and related topics. Many of California's laws on death are similar to those of other U.S. states, with some differences (in some cases, minor differences). California death laws on death are created and revised by the actions of lawmakers and the courts. Use the cross-references and topics below to learn more about California statutes and laws on death, which is a basic matter in California law.

Death and Dying

Welcome to the California legal encyclopedia's introductory part covering the death and dying laws of California, with explanations of the various implications of death and dying in California and the statutes enforced in California in connexion with death and dying. This introductory section covers case law related to death and dying in California, the legal approach on death and dying in the United States and related topics. The information below provides an California-specific general overview of the legal regime of death and dying in California.

Death and Dying in relation to Health Care Law

This section analizes the legal issue of death and dying in this context.

Death in California: General Overview

This entry offers readers with practical insight to the subject of death in California, a general introduction to the legal issues relating to death under California law and practice.

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Medical Treatment

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Medical Treatment in California

Medical Treatment Decisions

Welcome to the California legal encyclopedia's introductory part covering the medical treatment decisions laws of California, with explanations of the various implications of medical treatment decisions in California and the statutes enforced in California in connexion with medical treatment decisions. This introductory section covers case law related to medical treatment decisions in California, the legal approach on medical treatment decisions in the United States and related topics. The information below provides an California-specific general overview of the legal regime of medical treatment decisions in California.

Medical Treatment Decisions in relation to Health Care Law

This section analizes the legal issue of medical treatment decisions in this context.

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Assisted Reproduction

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Assisted Reproduction in California

Assisted Reproductive Technology and Other Reproductive Health Issues

Welcome to the California legal encyclopedia's introductory part covering the assisted reproductive technology and other reproductive health issues laws of California, with explanations of the various implications of assisted reproductive technology and other reproductive health issues in California and the statutes enforced in California in connexion with assisted reproductive technology and other reproductive health issues. This introductory section covers case law related to assisted reproductive technology and other reproductive health issues in California, the legal approach on assisted reproductive technology and other reproductive health issues in the United States and related topics. The information below provides an California-specific general overview of the legal regime of assisted reproductive technology and other reproductive health issues in California.

Assisted Reproductive Technology and Other Reproductive Health Issues in relation to Health Care Law

This section analizes the legal issue of assisted reproductive technology and other reproductive health issues in this context.

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Health Law

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Health Law in California

Healthcare providers in California frequently express concern about the impact complex health
information laws have on their practices and ability to provide integrated and coordinated care
for patients. This is particularly true for the stringent federal and State laws that provide special
protections for the privacy and confidentiality of mental health and substance use disorder
patient information.

The State of California encourages multi-disciplinary coordination of care for people receiving
treatment and services in California. There is a growing consensus in the healthcare community
that such integrated “whole person” care improves treatment outcomes, reduces inefficient
use of healthcare resources, and increases patient satisfaction and safety.

Healthcare and Patient Information

Patient Right to Be Informed

In California, a patient has a general right to receive notifications regarding how a health provider or organization plans to use and disclose patient health information, even when not specifically addressed in California regulations. Health Insurance Portability and Accountability Act privacy regulations provide additional guidance on how to accomplish this, including through the Notice of Privacy Practices.

Patient Right to Authorize Disclosure of Healthcare Information

An adult patient, across the United States, generally may provide permission for a provider or organization to share his or her personal healthcare information, including behavioral healthcare records, for a wide variety of purposes. When in the best interests of the patient and allowed by law, the State of California strongly encourages the exchange or disclosure of information. Even when the State of California and federal statutes and regulations prohibit disclosure of healthcare information unless authorized, behavioral healthcare providers are encouraged to discuss with patients why authorizing a disclosure or the sharing of information may be in the patients’ best interests.

Laws

The primary Federal regulations affecting the uses and disclosures of behavioral health
information include:

  • 42 Code of Federal Regulations (C.F.R.) Part 2 (as revised March 2017) – Confidentiality
    of Substance Use Disorder Patient Records
  • 45 C.F.R. Parts 160-164 – Health Insurance Portability and Accountability Act (HIPAA)

The primary State statutes pertaining to the uses and disclosures of behavioral health
information include:

  • CA Civil Code § 56 et seq. – Confidentiality of Medical Information Act (CMIA)
  • CA Welfare and Institutions Code (WIC) – various, including the Lanterman-Petris-Short
    (LPS) Act at § 5328 et seq.
  • CA Health and Safety Code (HSC) including § 11845.5, § 123110 and § 123125
  • CA Code of Regulations Title 9 – Rehabilitative and Developmental Services including
    § 10568(c)

The California Office of Health Information Integrity (CalOHII)

The California Office of Health Information Integrity’s primary mission is to assist State departments to protect and secure access to health information.

Health insurance after retirement

After retirement, people in California may be entitled, by law, to continued coverage under their employer’s group health insurance plan for a short period of time. Some employers actually maintain health insurance for their retired employees. Senior have other options. Medicare, Medigap policies, health maintenance organizations (HMOs), Medi-Cal or veterans’ benefits may help cover their medical expenses.

On March 23, 2010, the federal Patient Protection and Affordable Care Act became law. It requires most people to have health insurance by 2014 and helps defray costs for those with moderate or low income. The act guarantees an annual wellness visit for people in traditional Medicare programs and requires preventive care such as flu shots, mammograms and cancer screenings.

Medi-Cal

Unlike Medicare (see below), Medi-Cal is a health insurance program based on need. It pays for the health care of seniors who are at least 65 and who have very limited resources and income. (If seniorsu receive Supplemental Security Income, they automatically qualify for Medi-Cal benefits.) But even if the retired employees do not meet the strict financial need requirements, they could still qualify for Medi-Cal benefits if they are at least 65, blind or disabled, and have very little money or property. In such a case, however, seniors might have to pay a portion of your medical expenses yourself as a “share of the cost.” Medi-Cal covers doctor visits, lab tests, prescription drugs and long-term care.

Medicare

Medicare is a federal health insurance program that covers Social Security recipients who are at least 65 years old or who are younger, but have disabilities such as kidney failure. Income level and assets have no bearing on an individual’s eligibility for coverage.

Medigap

It is supplemental health insurance that can help pay some of the expenses that are not covered by Original Medicare. For example, it may cover co-payments or some additional costs for a prolonged stay in a skilled nursing facility. Medigap does not, however, offer prescription drug coverage. Medicare handles such coverage. If you have a Medicare Advantage plan, you do not need Medigap. Under the new Affordable Care Act, seniors do not have to purchase a Medigap policy.

Health and Privacy Laws

The State of California acknowledges the importance of protecting the privacy of patients
and the confidentiality of healthcare information. Many patients have needlessly experienced
the pain of ostracization or discrimination due to the inappropriate disclosure of information
regarding their mental health or substance use disorder treatments. Protecting patients
from this type of violation of their privacy rights is the driving force behind the special
regulatory protections for mental health and substance use disorder patients’ healthcare records and
information.

A dynamic tension exists between the needs to effectively care for patients and to protect the
sensitive behavioral health information from inappropriate disclosure.

California State and federal privacy laws related to health care information include, but are
not limited to, the:

  • Health Insurance Portability and Accountability Act (HIPAA)
  •  Confidentiality of Substance Use Disorder Patient Records – 42 C.F.R. Part 2 (as revised
    March 2017)
  • Confidentiality of Medical Information Act (CMIA)
  • Information Practices Act (IPA)
  • Lanterman-Petris-Short Act (LPS)
  • California Civil Code
  • California Code of Regulations Title 9 – Rehabilitative and Developmental Services
  • California Constitution, Article 1 § 1
  • California Health and Safety Code (HSC)
  • California Welfare and Institutions Code (WIC)
  • Patient Access to Health Records Act (PAHRA)

Confidentiality of Medical Information Act (CMIA) – Civil Code § 56.10-56.16

This law protects the privacy of medical information by limiting disclosures by providers of
healthcare, healthcare service plans, and contractors. Disclosure of limited health information
including location, general condition or death may be released to family members, other
relatives, domestic partners, close personal friend or other person identified by the patient.

Information and Records for Substance Use Disorder – CA HSC § 11845.5

Information and records maintained in connection with SUD diagnosis and treatment is
confidential and specially protected under this code section. Information and records may be
disclosed only as provided in this code section.

Rehabilitative and Developmental Services – CA Code of Regulations Title 9 § 10568(c)

All information and records obtained from or regarding residents in Residential or Drug Abuse
Recovery and Treatment facilities licensed by the State of California shall be confidential and
maintained in conformity with Title 42, Subchapter A, Part 2 Sections 2.1 through 2.67-1, Code
of Federal Regulations. Facilities licensed in California to provide Alcohol and Other Drug
services are required to follow 42 C.F.R. Part 2 regulations.

Lanterman-Petris-Short (LPS) Act – CA WIC §§ 5328 – 5328.9

Information and records obtained in the course of providing mental health services to
involuntarily detained recipients of services are confidential and specially protected under this
code. Information and mental health services rendered by State hospitals and community
mental health clinics are also protected under this code. Information and records may be
disclosed only as provided in this code section.

Mandated Health Insurance Coverage Rightships

Welcome to the California legal encyclopedia's introductory part covering the Mandated Health Insurance Coverage Rightshipslaws of California, with explanations of the various implications of mandated health insurance coverage rightshipaa, cobra, chip and schip in California and the statutes enforced in California in connexion with mandated health insurance coverage rightshipaa, cobra, chip and schip. This introductory section covers case law related to mandated health insurance coverage rightshipaa, cobra, chip and schip in California, the legal approach on Mandated Health Insurance Coverage Rightships in the United States and related topics. The information below provides an California-specific general overview of the legal regime of Mandated Health Insurance Coverage Rightships in California.

Mandated Health Insurance Coverage Rightshipsin relation to Health Care Law

This section analizes the legal issue of mandated health insurance coverage rightshipaa, cobra, chip and schip in this context.Health law includes, in California and elseware, the law of public health, health care generally, and medical care specifically, among other inclusions. Health care fraud is one of the white-collar crimes, regulated in California, that involves the filing of false or dishonest health care claims in order to obtain a profit or advantage. Workplace safety and health legislation and regulations are designed, in California and many other U.S. states, to eliminate (in some instances, to restrict substantially) personal injuries and illnesses in California produced in the workplace. See the entries on Health and on Health Care Providers in this California legal encyclopedia.

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Tort Law

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Tort Law in California

Tort Liability, Defenses and Immunities of Managed Care Organizations

Welcome to the California legal encyclopedia's introductory part covering the tort liability, defenses and immunities of managed care organizations laws of California, with explanations of the various implications of tort liability, defenses and immunities of managed care organizations in California and the statutes enforced in California in connexion with tort liability, defenses and immunities of managed care organizations. This introductory section covers case law related to tort liability, defenses and immunities of managed care organizations in California, the legal approach on tort liability, defenses and immunities of managed care organizations in the United States and related topics. The information below provides an California-specific general overview of the legal regime of tort liability, defenses and immunities of managed care organizations in California.

Tort Liability, Defenses and Immunities of Managed Care Organizations in relation to Health Care Law

This section analizes the legal issue of tort liability, defenses and immunities of managed care organizations in this context.

Specific Torts

Welcome to the California legal encyclopedia's introductory part covering the specific torts laws of California, with explanations of the various implications of specific torts in California and the statutes enforced in California in connexion with specific torts. This introductory section covers case law related to specific torts in California, the legal approach on specific torts in the United States and related topics. The information below provides an California-specific general overview of the legal regime of specific torts in California.

Specific Torts in relation to Personal Injury and Torts

This section analizes the legal issue of specific torts in this context, and provides information on its relation with Specific Torts.

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Medical Confidentiality

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Medical Confidentiality in California

Medical Records and Confidentiality

Welcome to the California legal encyclopedia's introductory part covering the medical records and confidentiality laws of California, with explanations of the various implications of medical records and confidentiality in California and the statutes enforced in California in connexion with medical records and confidentiality. This introductory section covers case law related to medical records and confidentiality in California, the legal approach on medical records and confidentiality in the United States and related topics. The information below provides an California-specific general overview of the legal regime of medical records and confidentiality in California.

Medical Records and Confidentiality in relation to Health Care Law

This section analizes the legal issue of medical records and confidentiality in this context.

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