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Jahi McMath could be any parent’s daughter.
The 13-year-old eighth-grader went into Children’s Hospital in Oakland for a tonsillectomy on Dec. 9. By Dec. 12, doctors determined she was brain dead, the result of severe blood loss after surgery. They sought to remove all life support, against the wishes of Jahi’s mother, Nailah Winkfield.
For three weeks, the case has played out in news accounts and in courts, as the parents sued to stop the hospital from pulling the plug. On Friday, the sides apparently compromised by agreeing that Jahi could be transported to a nursing home where she would be maintained on life support.
The case is hardly over.
Plaintiffs’ lawyers, their proxies and victims of medical negligence are pushing an initiative for the November ballot that would alter California’s 38-year-old medical malpractice law, the Medical Injury Compensation Reform Act. Under that law, which was signed by young Gov. Jerry Brown, damages for pain and suffering in a medical malpractice case are capped at $250,000. The initiative would quadruple that amount.
The case is rife with subtext. One is cost. The Affordable Care Act will provide health coverage for millions of previously uninsured people but does nothing to curb rapidly rising health care costs, probably its greatest omission. The health care industry will argue that any change in California’s medical malpractice law will jack up health care costs. Doctors will threaten to flee the state. Plaintiffs’ lawyers will scoff. Both sides will spin. There will be plenty of emotion, and talk of Jahi McMath.
The girl came to the public’s attention on Dec. 15 when the Contra Costa Times reported on her family’s fight to stop the hospital from pulling the plug.
By Dec. 18, Jamie Court, head of the Santa Monica-based advocacy group and initiative promoter Consumer Watchdog, called on Attorney General Kamala Harris, the California Medical Board and the Alameda County district attorney to investigate.
“As you probably know,” Court wrote to the authorities and to the rest of us, “in a case where negligence is suspected, California law makes it highly advantageous for the medical providers and facilities involved if children die in hospitals rather than live a lifetime with catastrophic injuries and significant medical costs.”
“Under a 38-year-old law, the Medical Injury Compensation Reform Act (MICRA), that has never been indexed for inflation, the most a family can recover in court for the loss of a child is $250,000, no matter how egregious the malpractice. By contrast, the hospital would be responsible for a lifetime of care and caretaking, if the patient lives. In the hospital’s rush to terminate Jahi’s life, this conflict of interest was no doubt never explained to the family.”
Last week, Court took went over the top. In one of the tackiest fundraising appeals I’ve ever seen, Court’s email blast opened by saying: “Consumer Watchdog’s patient safety project fights for families like Jahi’s. We’re working to expose medical negligence and save lives. Please help our fight with a tax-deductible contribution.”
The connection between the fundraising appeal and the coming initiative fight was obvious.
With Court and others throwing elbows, the hospital retained the crisis communications firm Singer Associates. Headed by Sam Singer, the company’s website says: “Singer’s nickname – The Fixer – says it all.” The site makes quite the boast: “If your reputation, fortune or political future is at stake, this is the agency you call to convince the public, the politicians or the judge that you’re in the right.”
“Doctors treat people and make them better. They don’t argue. They asked us to assist,” Singer said, and proceeded to attack the family’s lawyer, Christopher B. Dolan: “Dolan wants to make this about MICRA … He wants more than $250,000.”
I know Dolan. He was president-in-waiting of the Consumer Attorneys of California in 2009 when I worked for the trade group. He is a hard-driving, motorcycle-riding workaholic who is very smart. You wouldn’t want to be on the receiving end of a Dolan lawsuit. In the campaign to alter MICRA, Dolan will be a combatant, as will the organization he headed.
Dolan told me he made clear the situation to Jahi’s mother: “There is little if any hope here. There is a bleak road ahead.” Still, she wanted her daughter kept alive.
“If this family wanted to terminate, and hospital opposed it, I would fight just as hard,” Dolan said. “It is about who gets to make the decision, the hospital or the parents.”
Like many plaintiffs’ lawyers, Dolan is a true believer that the malpractice law hurts victims of medical mistakes, especially children and their parents. Medical malpractice damages are based on the cost of caring for an individual and the loss of their future earnings. Since children have no earnings, their economic damages are minimal. That leaves pain and suffering, which is capped at $250,000.
In 1975, attorney Fred Hiestand helped inform Brown’s decision about whether to sign the law. Hiestand had been a liberal public-interest lawyer. In this instance, however, he sided with doctors and insurance companies. In subsequent years, he has been an attorney for the Civil Justice Association of California, a corporate-funded advocacy group that has led political and legal efforts to protect MICRA.
Hiestand recalled a conversation decades ago in which the young governor offered a reason to sign the law, musing that individuals suffering the pain of a lost loved one should turn to religion or maybe drugs to numb the pain.
“Money is a false god,” Hiestand recalled Brown telling him.
A false god, sure, but it’s the currency of the political realm. Plaintiffs’ lawyers and Consumer Watchdog have raised $1.2 million to gather signatures to qualify their initiative.
Medical malpractice insurance companies, physicians, hospitals and dentist are ready for the fight. They raised $31.5 million in loans in a one-month period last summer for the campaign to protect the 1975 law.
There is room for a legislative compromise, which is what should happen.
My guess is that attorneys would accept a doubling of the cap on pain and suffering damages to $500,000 with some sort of escalation clause. Perhaps the factions could look to Texas. There, malpractice victims can collect $250,000 from as many as three defendants, or $750,000.
None of it will help Jahi McMath’s family. Family members will sue Children’s Hospital. The case will settle. When it’s over, the family will be left with an emptiness that money cannot fill. The political campaign will go on; it always does.
Follow Dan Morain on Twitter @DanielMorain