Dan Walters

Dan Walters: Campaigns on malpractice measure will avoid the issue

Jerry Brown signed the Medical Injury Compensation Reform Act during the first year of his first governorship 39 years ago, and except for a brief truce, the contending factions have waged perpetual war over its provisions in the Capitol ever since.

MICRA, as it’s universally known, limits noneconomic damages in a medical malpractice case – generally called “pain and suffering” – to $250,000.

Physicians, backed by insurers, sought the legislation, contending that multimillion-dollar awards were driving them out of high-risk fields such as obstetrics.

Lawyers who specialize in personal injury cases hate the law and have been trying for decades to repeal or modify it, to no avail.

And now voters are being asked to break the political stalemate with the qualification of an initiative ballot measure that would quadruple the limit initially and adjust it for inflation thereafter.

Oddly, however, as proponents and opponents prepare to spend tens of millions of dollars on the issue, voters are unlikely to hear much about it. Instead, they will be treated – or subjected – to barrages of propaganda about other provisions of the measure that are deemed to have more visceral appeal.

Proponents of the “Pack Patient Safety Act” – so named because sponsor Robert Pack’s two children were killed in a collision with a car whose driver had been overprescribed with drugs – will tell voters that it’s about compelling doctors to be tested for drug abuse and requiring them to check on patients in a statewide drug database before issuing new prescriptions.

The measure’s lawyer-backed campaign has released a poll purporting to prove that voters support those two changes in law, but that didn’t even mention MICRA or its limit on malpractice damages.

Meanwhile, opponents – medical providers and their insurers – have done their own polling and believe that the drug database provision of the measure could be its Achilles heel.

The opposition campaign will contend that the database called CURES that doctors would have to consult before prescribing a drug to a patient is incapable of handling the demand that the measure would impose, and that using it could expose personal health information to widespread disclosure.

The latter is seen as a particularly powerful argument because personal privacy and database breaches have become a widespread concern.

Both campaigns will, therefore, be using a tried-and-true campaign technique of appealing to voters’ fears for their safety.

During the weeks leading up to November’s election, they will be told by one side that drug-addled doctors pose a huge risk to patients’ safety, and by the other side that their most intimate medical information would be placed in a malfunctioning database that could be easily penetrated.

And what about MICRA’s $250,000 cap? Go fish.