By Kimberly A. Valentine, Esq. | Each year as many as 440,000 Americans die as the result of medical negligence, according to a recent study in the Journal of Patient Safety. That makes medical negligence the third-leading cause of death in this country, behind only heart disease and cancer.
In order to reduce these terrifying numbers, the Troy and Alana Pack Patient Safety Act,” or Proposition 46, seeks to do three things, each aimed at increasing patient safety.
First, Proposition 46 requires random drug and alcohol testing for doctors. According to a recent USA Today report, more than 100,000 health care professionals “struggle with abuse or addiction.” Currently, healthcare professionals are not required to submit to drug and alcohol testing, even though it as required of airplane pilots and truck drivers. Aren’t our doctors and healthcare professionals just as vital to public safety? This testing will identify those who are putting patients at risk, and serve as a strong deterrent against future abuse by others. Who can argue against the logic of identifying impaired doctors and nurses and making sure they do not hurt their patients?
Second, Proposition 46 will require that doctors check an existing state database before prescribing powerful and potentially addictive narcotic medications. The purpose of the database is to make sure that a patient is not already receiving the medication from another source. Ending over-prescription of these powerful drugs to “doctor shoppers” will lead to a reduction in prescription drug abuse and addiction. This may help avoid occurrences such as what happened to Troy and Alana Pack, the namesakes of this proposed legislation, who died at the hands of a “doctor shopper” who in the week leading up to their deaths consumed over 340 pain killers and muscle relaxers, and who fell asleep behind the wheel of her car before killing the seven and ten-year-old victims.
Third, Proposition 46 seeks to increase the monetary damages available as it relates to the pain and suffering for victims of medical malpractice. If all you did was listen to the “No on 46” advertising that has already started to inundate us over the last several weeks, you would think this is what Proposition 46 is all about: another attempt by the “trial lawyers” to make a money grab, all at the expense of quality health care. This argument ignores the important law changes discussed above, and misrepresents the effect that the current laws have on victims of medical negligence to the extent current laws deprive judges and juries of the ability to fairly compensate victims of medical negligence.
I felt it important that you hear from a lawyer who routinely handles these kinds of cases regarding the third prong of Proposition 46, and share with you how the current laws impact victims of medical negligence, including the case of my client, Milton Butterfield.
Mr. Butterfield went to the emergency room at Community Hospital of Long Beach, with back pain, weakness and dehydration, a few days after falling at home. Six hours later, his condition worsening while he was in the hospital, he was discharged over the objections of his family. He was then dragged by hospital employees from a gurney into a wheelchair, as he could not leave under his own power.
While still in his wheelchair in the hospital parking lot, Mr. Butterfield went into cardiac arrest. Five minutes went by before he could receive the CPR he would have received immediately if he had not been discharged. This delay led to brain damage.
Mr. Butterfield never recovered, and he died six months later. The hospital and the doctor made their case in court, but a jury comprised of 12 community members rendered his family a $1 million verdict.
However, under California law as it currently stands, the maximum amount that could be recovered for his loss was $250,000, the maximum allowable amount a victim can recover for non-economic losses, such as physical pain and mental suffering. $250,000 is also the maximum amount that can be given for the anguish, agony and heartache associated with the loss of a parent, child or spouse. Even though a jury of twelve determined the family’s loss to be worth $1,000,000, the judge was forced by law to reduce that amount to $250,000.
The Insurance industry tells us that compensating for one’s lost wages and future medical care equates to fair compensation. The current laws do provide for this. However, this position conveniently ignores some glaring holes in the current laws.
Kim Valentine is the Principal attorney of Valentine Law Group, APC. The firm focuses on areas of elder and dependent adult abuse and neglect, medical malpractice and serious personal injury. She can be reached at [email protected].