Robert Pack

Viewpoints: Cap on medical negligence claims is outdated and unfair to victims

Published: Thursday, Jul. 11, 2013 - 12:00 am | Page 11A

When my 7-year-old daughter and 10-year-old son died suddenly on a roadside nine years ago, I was forced to confront not only the unimaginable grief of losing my young children forever, but also the reality that doctor discipline and accountability in California don't exist.

Alana and Troy were walking on a sidewalk in Danville with my wife, Carmen, when a drugged driver fell unconscious at the wheel and swerved off the road, killing my two children and injuring Carmen. We also ended up losing our unborn twins as well.

The driver, Jimena Barreto, turned out to be a doctor-shopping drug addict who was convicted of second-degree murder and imprisoned for 30 years to life. The Kaiser doctors who prescribed her thousands of pills, however, were never held accountable for their negligence.

Barreto had no physical symptoms, but managed to stockpile narcotics without any oversight.

In the wake of my family's tragedy, I found that Kaiser's doctors had no idea they were all over-prescribing to the same doctor shopper. There was no computer system tracking prescriptions patients received. Since my background is in technology, I developed the electronic CURES database, a searchable system that tracks prescriptions dispensed in California.

Today, the tool is at the disposal of every doctor, law enforcement official and regulator in the state. Unfortunately, most of them don't use it.

This is the sad story of the last 3 1/2 decades in California: physicians largely unwilling to police themselves, regulators turning a blind eye to available information about dangerous doctors, and a lack of legal deterrence to medical negligence.

The core of the failed doctor disciplinary system that killed my four children dates back to 1975. It was a punch in my gut when I learned that a California law capped the value of my children's lives at $250,000.

Jerry Brown signed the law in his first term as governor, 37 years ago, and the amount has never been adjusted for inflation.

At the time, doctors promised that a strong new regulatory system would make up for the lost deterrence of the legal system, but patient safety scandals continue to rock California.

Kaiser still doesn't utilize the CURES database. The physicians responsible for the death of my children were never disciplined by the California Medical Board. In fact, the current president of the medical board was the medical director at Kaiser who refused to make changes at the HMO following my family's tragedy.

In 1975, legislators made $22,000 per year. Back then, a gallon of gasoline cost 57 cents. The value of everything has gone up since 1975, but not the $250,000 cap on the value of a child's life.

The law is one size fits all, no matter how clear the negligence or how catastrophic the injury or loss. It sets a fixed cap on the value of a child's life, and does the same to others whose quality of life is destroyed when their limbs, or vision, or ability to have a child are taken away by negligent doctors.

Of course, Troy and Alana were priceless. No amount of money can replace them. But when a child's life is valued so little, patients face continued risks because the medical establishment has no incentive to change.

It's time to adjust this 37-year-old cap so it is in line with the cost of living. Recently Barry Keene, the author of the law, came forward to say it should be indexed for inflation, and that was always the Legislature's intent.

There is no danger malpractice insurance rates will rise. Since 1988, California's malpractice insurance rates have been tightly regulated.

Unfortunately, the Legislature has not acted, which is why I am working with Consumer Watchdog on a ballot initiative, "The Troy and Alana Pack Patient Safety Act," for the 2014 ballot. If California lawmakers are unwilling to prevent another family from going through the same tragedy Carmen and I faced, the voters will have their chance.

Robert Pack is the founder of the Troy and Alana Pack Foundation and a leader of www.38istoolate.org.

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