California fails to raise medical malpractice cap by floyd arthur
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Transcript of California fails to raise medical malpractice cap by floyd arthur
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CALIFORNIA FAILS TO RAISE MEDICAL MALPRACTICE CAP BY FLOYD ARTHURwww.CarmoonGroup.com and www.Floyd-Arthur.com
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A CONTROVERSIAL BALLOT MEASURE THAT WOULD HAVE RAISED THE CAP ON DAMAGE AWARDS FOR PAIN AND SUFFERING
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IN MEDICAL MALPRACTICE CLAIMS WAS DEFEATED LAST MONTH IN CALIFORNIA. THE MEASURE, PROPOSITION 46,
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WOULD HAVE RAISED THE AMOUNT PATIENTS WHO PREVAIL IN A MEDICAL MALPRACTICE CASES CAN RECEIVE FOR NON-
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ECONOMIC DAMAGES FROM $250,000TO $1.1 MILLION. IT ALSO CALLED FOR DRUG TESTING OF PHYSICIANS WITHIN 12
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HOURS OF AN "ADVERSE EVENT" AND RANDOMLY IF THERE WERE SUSPICIONS OF DRUG USE, AND REQUIRED PHYSICIANS
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TO CONSULT A STATEWIDE DATABASE BEFORE PRESCRIBING DRUGS WITH A HIGH POTENTIAL FOR ABUSE.
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IS CALIFORNIA'S MEDICAL MALPRACTICE CAP TOO LOW?
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THE CALIFORNIA INITIATIVE WAS CO-AUTHORED BY BOB PACK, A FATHER WHOSE TWO CHILDREN WERE STRUCK AND
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KILLED BY A WOMAN WHO WAS DRIVING WHILE UNDER THE INFLUENCE OF PRESCRIPTION PAIN KILLERS AND THE MUSCLE
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RELAXANT FLEXERIL IN 2005. AFTER THE INCIDENT, PACK AND HIS WIFE, WHO WAS ALSO INJURED IN THE ACCIDENT,
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LEARNED THAT THE WOMAN HAD BEEN ARRESTED FOUR TIMES IN THE PAST FOR DUI. INCENSED, THEY TRIED TO SUE THE
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DOCTORS WHO HAD SUPPLIED HER WITH THE DRUGS.
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NO ATTORNEY WOULD TAKE THE PACK'S CASE, CITING THE STATE'S LOW NON-ECONOMIC DAMAGE CAP AS THE CAUSE.
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(ATTORNEY'S TYPICALLY TAKE CASES LIKE THE PACK'S ON CONTINGENCY, TAKING A PORTION OF ANY AWARD AS THEIR FEE.)
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NOR IS THE PACK'S CASE UNUSUAL. CALIFORNIA'S "PAIN AND SUFFERING" CAP IS OFTEN GIVEN AS THE REASON WHY
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ATTORNEYS AVOID MEDICAL MALPRACTICE CASES INVOLVING THE POOR, CHILDREN OR THE ELDERLY, WHO ARE UNLIKELY
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TO RECOVER SUBSTANTIAL ECONOMIC AWARDS. (THE STATE HAS NO CAP ON ECONOMIC OR PUNITIVE DAMAGES.)
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PROPONENTS OF PROP. 46 POINTED TO CASES LIKE PACK'S AS REASON ENOUGH TO CHANGE THE LAW, ADDING THAT
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CALIFORNIA'S DRACONIAN DAMAGE CAP-THE LOWEST IN THE NATION-HAS BEEN IN EFFECT SINCE 1975. BY CONTRAST,
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MOST STATES HAVE NON-ECONOMIC DAMAGE LIMITS IN THE RANGE OF $300,000 TO $600,000, AND 15 STATES AND
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THE DISTRICT OF COLUMBIA HAVE NO CAPS AT ALL.
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NONETHELESS, OPPONENTS OF THE MEASURE WARNED THAT QUADRUPLING THE STATE'S MEDICAL MALPRACTICE CAP ALL
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AT ONCE WOULD HAVE DISASTROUS RESULTS, RESULTING IN MORE LAWSUITS AND HIGHER MALPRACTICE INSURANCE
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PREMIUMS FOR PHYSICIANS. FURTHER, THEY CLAIMED, HIGHER PREMIUMS FOR DOCTORS WOULD DRIVE UP HEALTH
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CARE COSTS AND EVEN FORCE SOME OF PHYSICIANS TO LEAVE THE STATE. A BARRAGE OF ADVERTISEMENTS, FUNDED IN
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PART BY PHYSICIAN GROUPS, TOLD CONSUMERS THAT THE LAW COULD INCREASE HEALTH INSURANCE PREMIUMS BY $1,000 PER YEAR.
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IS PHYSICIAN DRUG USE A FACTOR IN MEDICAL MALPRACTICE?
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SOMEWHAT SURPRISINGLY, THE SECOND FEATURE OF CALIFORNIA'S CONTROVERSIAL MEASURE-RANDOM PHYSICIAN
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DRUG TESTING -HAD THE MOST POPULAR SUPPORT. HOWEVER, BOTH MEDICAL AND LEGAL EXPERTS CALLED THE
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PROVISION "FUNDAMENTALLY FLAWED." FIRST, THEY POINTED OUT, MEDICAL MALPRACTICE IS RARELY EVIDENT
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IMMEDIATELY. MANY ERRORS, (FOR EXAMPLE, MISSED OR MISTAKEN DIAGNOSES) TAKE MONTHS TO APPEAR. THUS,
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THE LAW'S PROVISION REQUIRING DRUG TESTING WITHIN 12 HOURS OF AN "ADVERSE" EVENT WAS UNREALISTIC AND FAR
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TOO RESTRICTIVE.
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ADDITIONALLY, THERE IS LITTLE EVIDENCE TO SUPPORT THE ALLEGATION MADE BY SOME OF THE PROPOSITION'S
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PROPONENTS THAT A SIGNIFICANT NUMBER OF IMPAIRED DOCTORS EXIST. ESTIMATES OF THE DEGREE OF SUBSTANCE
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ABUSE AMONG HEALTHCARE PROFESSIONALS VARY WIDELY. HOWEVER, ACCORDING TO A 2007 REPORT RELEASED BY THE
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U.S. SUBSTANCE ABUSE AND MENTAL HEALTH SERVICES ADMINISTRATION, ABOUT 100,000 DOCTORS, NURSES,
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MEDICAL TECHNICIANS AND HEALTH CARE AIDES ABUSE PRESCRIPTION DRUGS OR ALCOHOL EACH YEAR. GIVEN THAT
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THERE ARE CURRENTLY 878,000 LICENSED PHYSICIANS, 2.7 MILLION WORKING NURSES, AND ABOUT 15,000 MEDICAL
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TECHNICIANS, NURSE ASSISTANTS AND OTHER ANCILLARY STAFF IN THE UNITED STATES, THAT TRANSLATES TO AN INFINITE
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SMALL PERCENTAGE OF CAREGIVERS NATIONWIDE.
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MEDICAL MALPRACTICE AND PRESCRIBING
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PRACTICES
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THE FINAL PORTION OF THE FAILED PROPOSAL SHOULD HAVE BEEN THE LEAST CONTROVERSIAL - A PROVISION MANDATING
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THAT DOCTORS CHECK THE CONTROLLED SUBSTANCE UTILIZATION REVIEW AND EVALUATION SYSTEM (CURES)
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DATABASE BEFORE PRESCRIBING CONTROLLED SUBSTANCES. THE DATABASE WAS ESTABLISHED IN 2009 - A JOINT EFFORT
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BETWEEN THE U.S. DEPARTMENT OF JUSTICE AND THE STATE. HOWEVER, PARTICIPATION IN THE SYSTEM, WHICH IS
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AVAILABLE TO BOTH PRESCRIBERS AND PHARMACIES AND IS MEANT TO ALERT THEM WHEN PATIENTS ARE FILLING
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MULTIPLE PRESCRIPTIONS FOR CONTROLLED SUBSTANCES, IS VOLUNTARY, AND UTILIZATION HAS BEEN LOW.
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MAKING USE OF THE ALREADY EXISTING DATABASE MANDATORY, PROPONENTS ARGUED, COULD IN THEORY PREVENT THE
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KIND OF OVERPRESCRIBING OF DANGEROUS MEDICINES THAT LED TO DAVID PACK'S CHILDREN'S DEATHS.
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NONETHELESS, OPPONENTS OF PROP. 46, FUNDED AN AD CAMPAIGN AGAINST THE USE OF CURES, CALLING IT
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"VULNERABLE TO HACKERS," AND WARNING CALIFORNIANS THAT THEIR PERSONAL MEDICAL INFORMATION COULD BE
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SUBJECT TO UNWANTED SCRUTINY IF THE PROPOSITION PASSED. (THE ADS IGNORED THE FACT THAT CURES HAD BEEN
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EXISTENCE FOR 6 YEARS AND HAD NEVER BEEN HACKED.)
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DESPITE THE FAILURE OF THE LAW, DAVID PACK AND OTHER PROPONENTS OF PROP. 46 HAVE VOWED TO BRING A
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SIMILAR MEASURE BACK TO THE VOTERS NEXT YEAR.
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MEDICAL MALPRACTICE IS A COMPLEX ISSUE, AND-REGARDLESS OF HOW HIGH OR LOW DAMAGE CAPS ARE IN YOUR
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STATE-NO PROVIDER WANTS TO BE SUED. NONETHELESS, ERRORS AND LAWSUITS HAPPEN, WHICH IS WHY
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COMPREHENSIVE MEDICAL MALPRACTICE INSURANCE IS A MUST. WHETHER YOU ARE CURRENTLY UNINSURED AND
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NEED HELP MAKING A DECISION ABOUT COVERAGE OR HAVE QUESTIONS ABOUT A POLICY THAT'S ALREADY IN PLACE, FEEL
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FREE TO CONTACT US TO SCHEDULE AN INSURANCE REVIEW TODAY. WE ARE AVAILABLE MONDAY THROUGH FRIDAY
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9A.M. TO 6 P.M. AT 516-292-3780, OR YOU CAN REQUEST A FREE CONSULTATION ONLINE.
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CARMOON GROUP LTD. BUSINESS INSURANCE HEMPSTEAD NEW YORK
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GET YOUR FREE 30 MINUTE CONSULTATION ATwww.carmoongroup.com/contact-us/