I So Much Wanted to Vote for Prop 46

I so much wanted to vote Yes on Proposition 46. In the end, though, I will not be voting Yes, but not for the reasons the Vote No on 46 wants you to believe. I actually find myself siding with the Vote Yes on 46 camp, so it is with much sadness and dread that I may have to turn down my vote come Tuesday (spiritually siding with them and seeing the exactness of the law as written are 2 different things).

For those who don’t know what Proposition 46 is, let me summarize briefly what the Proposition says:

• Raise the maximum cap in a medical lawsuit from $250,000 to $1,100,000 and have the limit tied to the rate of inflation.
• Have physicians tested for drug use.
• Require use of the state-wide prescription tracking database when prescribing all drugs.

I am not writing to tell you to vote one way or another. But I think many people have already decided to vote No on the basis of the first point: raising the financial cap in a medical lawsuit.  I think that many people’s reasoning is that they don’t want frivolous lawsuits and don’t want their medical premiums to rise (points that the No on 46 camp touts again and again). But I do want to share my experience as to why I think those 2 reasons don’t bear weight. And as I think this proposition will lose, I’m sure it will be re-written and appear in a more refined state in the years to come. So I hope people will consider this better and be more informed the next time around.

No on 46 Flyers sent to me. Yes on 46 side couldn’t afford flyers.

My wife died at the beginning of the year 2010 (January 3 to be exact). It was sudden.  I went through the year stunned and groping my way through reality. In that period, the only thing I wanted from her doctors was an apology. I fully understood the legal issues in an apology, and why that may make it difficult.  But I went ahead and pursued it.  There are moral implications here.  I have since learned that, when an error happens, most people just want an apology. They are not interested in lawsuits. And neither was I. I can pretty much bet that a genuine (not perfunctory) apology will defuse much of the anger that generates lawsuits. But you will never see apologies appearing in California.  (There is an “apology in medical practice” movement under way, but it has a long way from seeing fruition in California.)

But the medical institution that was responsible for Ruth stalled and stalled in meeting with me. I initiated contact in April and it was October before they relented and met with me. But their timing was cleverly orchestrated. They knew (and I didn’t) that one can only bring a lawsuit within one year of the point of error. The statute of limitations prevents any lawsuit from appearing after exactly one year (there is a 3-month extension with special provisions). So unlike other cases, it’s not like one can decide years later that a suit should be filed. A suit can only be filed in a period when the aggrieved party is still floundering and figuring out what to do. Which is  to say that the idea of numerous unwanted lawsuits appearing from this proposition is unmerited.

I first consulted lawyers when I saw that medical records were tampered with and I had the sense the other party was stalling. But let me share 2 other points I learned about medical error cases that is pertinent to the issue of caps.

• Lawyers cannot charge fees for these cases. All must be contingency cases, meaning that if they lose, they get nothing. So it is on the onus of the lawyers to know that there is some merit to the case they take. This is not like many felony cases where a lawyers gets paid, whether they win or not. In these medical cases, the lawyers for the medical and/or insurance institutions get paid, whether they win or not. The lawyers making the suit get nothing if they lose.
• Lawyers cannot accept more than 40% of what the person they represent gets. That means that if they win the full cap of $250,000 in damages paid, they can only get $100,000 at most.

I talked with seven law firms. All said they couldn’t take the case. But two offered an explanation. They saw some merit in the case. But they explained that financially, they couldn’t do it. The simple explanation: “Even if we won the case, we would lose money.” Many cases are complicated, and they said that mine was such as case. They would have to bring in expert witnesses to explain exactly what happened. And these experts cost money. By the time everything is done, and they did win the case, they would have spent more than what they would receive. It’s a money loser for them, any way you look at it. So on this basis, the cap needs to be raised.

But let me add one last, and to me, the most important, point about bringing a lawsuit. I am not a lawsuit-hungry person. In cases like these, I doubt many are. Before Ruth died, I probably would have voted no on the idea of enabling lawsuits. But I have changed my mind.  Most readers know who I am. I was not after the money; it’s just not me. I had already considered that if a lawsuit came to pass and I won, I would give the money away. I considered, if it was legal, giving it all to the lawyers. Or something else; I hadn’t thought that far. I knew I just didn’t want to use the “death” money.

The main reason I considered pursuing a lawsuit, was to bring the facts out in the open. The medical side, in writing, blamed Ruth for her death. It was written very cleverly (definitely written by their lawyers to shift blame). Medical records, which they have control of, were also adjusted (the law says you own your records– but who writes them?). So overall, it is the word of one man with limited financial means versus a vast institution with millions of dollars. In public knowledge, the facts of the case is buried. The only way to bring it to light (outside of reporters, to which I also don’t have access) is to bring this situation into a public forum where facts can be seen. And recorded for public knowledge.

As it stands now, there is some evidence that close to 100,000 die from medical malpractice in the United States. And if my case is any indication, there are countless more that are “below the radar.” If the facts are not appearing in the documents the doctors themselves hold (that is a story in itself) then the facts need to appear somewhere.

As far as Proposition 46 goes, if it had just been written with the one point of raising caps, I would have voted a strong yes. It is just that, for me, I am a little hesitant and unclear as to the facts and ramifications behind the other points.

But one thing is clear about the appearance of Proposition 46. There is a groundswell of consumer discontent. What it shows is that they are saying to the medical and insurance groups: “Enough is enough.” Too many people are needlessly dying because of their actions. I fully agree with the Proposition writers’ sentiment that if the medical establishment is not going to correct themselves, then someone else will do it for them. For me, I just wish the proposition was better written.