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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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Mechanics' Liens

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Mechanics' Liens

California Mechanics' Liens

This section covers California-specific basic information on mechanics' liens and related topics. Many of California's laws on mechanics' liens are similar to those of other U.S. states, with some differences (in some cases, minor differences). California mechanics' liens laws on mechanics' liens 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 mechanics' liens, which is a basic matter in California law.

Mechanics' Liens in California: General Overview

This entry offers readers with practical insight to the subject of mechanics' liens in California, a general introduction to the legal issues relating to mechanics' liens 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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Mental Health

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Mental Health

Lanterman-Petris-Short Act

The Lanterman-Petris-Short (LPS) Act provides guidelines for ‘involuntary’ civil commitments of
individuals to mental health institutions in the State of California. The act was intended to
protect the civil rights of individuals by eliminating the inappropriate, indefinite, and
involuntary commitment of persons with mental health disorders, development disabilities, and
chronic alcoholism. The passing of the Lanterman-Petris-Short Act brought an end to judicial commitments that
provided no due process and the loss of civil and constitutional rights. If the provider is subject
to Lanterman-Petris-Short, it must comply with the law.

A mental health provider may disclose Lanterman-Petris-Short-regulated protected health information to a team developing organizational strategy and policy only if the person providing the information and the person(s) receiving the information are qualified professional persons providing services within the treatment facility.
If this condition is not met, the mental health information can be shared with the team only
with a valid patient or patient representative authorization. [CA Welfare and Institutions Code §§ 5328(a) – (b).]

A mental health provider not regulated by Lanterman-Petris-Short may disclose protected health information to a team developing organizational strategy and policy as permitted by the Health Insurance Portability and
Accountability Act (HIPAA) and California Medical Information Act (CMIA) for business planning
and development related to managing and operating the entity. [45 C.F.R. § 164.501 and § 164.506.]

California Mental Health

This section covers California-specific basic information on mental health and related topics. Many of California’s laws on mental health are similar to those of other U.S. states, with some differences (in some cases, minor differences). California mental health laws on mental health 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 mental health, which is a basic matter in California law.

Related Law

• 42 C.F.R. § 2.1.
• 42 C.F.R. § 2.11.
• 42 C.F.R. § 2.12(c)(4).
• 42 C.F.R. § 2.12(d)(2).
• 42 C.F.R. § 2.32.
• 42 U.S.C. 290ee-3(b)(2)(B).
• 45 C.F.R. § 160.103.
• 45 C.F.R. § 164.308(b).
• 45 C.F.R. §§ 164.314(a)(1) – (a)(2).
• 45 C.F.R. § 164.501.
• 45 C.F.R. § 164.502(b)(2)(iii).
• 45 C.F.R. § 164.504.
• CA Civil Code § 56.10.
• CA Health and Safety Code §§ 11845.5(c)(1) and (c)(3)

Mental Health and Developmental Disability Code

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

Mental Health and Developmental Disability Code in relation to Probate, Estates and Trusts

This section analizes the legal issue of mental health and developmental disability code in this context, and provides information on its relation with Administration of Estates.

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Health Law
Health
Civil Rights
Health-Care Providers

Medical Institutions

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Medical Institutions in California

Medical Institutions

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

Medical Institutions in relation to Personal Injury and Torts

This section analizes the legal issue of medical institutions in this context, and provides information on its relation with Particular Factual Situations.

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Measures

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Measures

California Measures

This section covers California-specific basic information on measures and related topics. Many of California's laws on measures are similar to those of other U.S. states, with some differences (in some cases, minor differences). California measures laws on measures 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 measures, which is a basic matter in California law.

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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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Mining

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Mining

California Mining

This section covers California-specific basic information on mining and related topics. Many of California's laws on mining are similar to those of other U.S. states, with some differences (in some cases, minor differences). California mining laws on mining 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 mining, which is a basic matter in California law.

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Medical Care

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Medical Care in California

Medical Care Professionals

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

Medical Care Professionals in relation to Health Care Law

This section analizes the legal issue of other medical care professionals in this context.

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Medical Law

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Medical Law in California

Entitlement to Medical Treatment and Emergency Care

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

Entitlement to Medical Treatment and Emergency Care in relation to Health Care Law

This section analizes the legal issue of entitlement to medical treatment; emergency care in this context.

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