MICRA-Protecting against frivolous lawsuits, or re-victimizing the victim

I have limited familiarity with the people who urge contempt for victims of medical malpractice. One such person is Leslie Devaney, a sometime board member of Citizens Against Lawsuit Abuse. Such organizations support MICRA's severe award limits for medical malpractice.

Ironically, Leslie Devaney wants to prevent public hospitals from giving reasonable compensation to damaged patients, she and her partner Ray Artiano forced Tri-City Hospital to give millions of public money to fired administrators (with a large chunk going to Ms. Devaney and Mr. Artiano, of course.)

So it doesn't seem that CALA membership means a person wants to protect the taxpayer. Apparently, they just want to make sure the public is NOT protected from negligent doctors and other harmful individuals.


Michelle Massey, mother of baby
who died from undiagnosed bacterial infection

MICRA-Protecting against frivolous lawsuits, or re-victimizing the victim
Ica Iova
Examiner.com
May 7, 2013

Many states including California, have adopted tort reform measures since the mid 1970’s in response to acute increases in medical malpractice insurance costs. They imposed caps on victim's compensation for noneconomic damages. California also placed limits on attorney contingency fees.

Tort reform in California [MICRA] primarily focused on capping victim compensation for noneconomic damages, also known as "pain and suffering" awards.

The law limits noneconomic damages in medical malpractice lawsuits to $ 250,000, and additionally limits the amount attorneys in medical malpractice cases can collect under a contingency fee arrangement to 40% of the first $ 50,000, 331/3% of the next $ 50,000, 25% of the next $ 500,000, and 15% of any amount that exceeds $ 600,000.

These limits apply regardless of whether the recovery is by settlement, arbitration, or judgment. If the contingency fee arrangement is based on an award of periodic payments, the court must place a total value on the payments based on the projected life expectancy of the claimant, and then calculate the contingency fee percentage.

What does all this mean for you and your family? It means that in case that you, or one of your loved ones, have suffered following an episode of medical malpractice, you’ll not be able to sue anyone, unless you can represent yourself because most likely you’ll not be able to find a lawyer willing to take your case.

In other words, you are victimized twice; once by a medical professional, and then, by a system which protects the perpetrator.

I have recently interviewed one such victim; Michelle Massey’s 7-year-daughter-Jessie Marie Geyer-died in November of 2003, due to a misdiagnosed bacterial infection that could have been treated with antibiotics.

When Jessie’s parents tried to bring to justice the doctors and the hospital responsible for Jessie’s death, they found themselves obstructed by MICRA.

Jeffrey Mitchell-Michelle Massey’s lawyer-said that taking cases like this every day, could lead to economic suicide, and not very many lawyers are willing to take that chance.

It's said that MICRA is protecting doctors and hospitals from frivolous lawsuits.

“I was so brain washed about frivolous lawsuits. When Jessie was killed I was devastated. Then I discovered what frivolous means according to MICRA. That my sweet 7-year-old daughter had no value because she was not a wage earner. Jessie's death was ‘frivolous’. I wonder if that is what you thought frivolous meant. If it were your child, or your mother, father, grandpa, brother, sister, that lost their life because of a preventable medical error, would their death be frivolous?” Michelle said.

She said that on average, 500 people die every day in this country due to medical negligence, and are denied the right to a fair trial.

The Geyers tried to fight the system, and after 3 and 1/2 years, the cap amount was spent, and they no longer had the funds to continue to fight.

To Michelle, the death of her daughter is as vivid as always.

“I remember staring at Jessie's face, tears streaming down my checks, after they said time 1:21AM, how it just lingered in my ear what seemed like for me the final word to be said. Jessie was actually dead. Then I looked at her whole face and traced her lips and mouth and eyelids.”

Michelle remembers as she was taking the gold studs from Jessie’s ears and putting them in her own ears-where they still are today-the memory of the day Jessie got her ears pierced overwhelmed her; a 6-month-old chubby Jessie, with rolls of baby-fat folding over, hit Michelle like an avalanche, realizing that she will never see her daughter growing up, going to college, or getting married.

Since her daughter’s death, Michelle, has fought tirelessly to educate the public about how MICRA needed to be changed. In 2005, she received the Consumer Advocate of the Year’s award.

She continues to be a voice, advocating to make Jessie's Law, the law of the land, and restore what she calls Medical Malpractice Victims’ Constitutional Rights.

“My ultimate goal is to reform and/or overturn MICRA in Jessie's name. We need to make this a national law, so the states can stop fighting about this ongoing issue that is just getting worse with still not one thing changed in since MICRA was put in place.” She said.

Michelle Massey wants you to join her, in her fight for justice. More information about Michelle Massey and her work can be found on her website http://www.shellybeenz.com...


Medical Injury Compensation Reform Act
From Wikipedia, the free encyclopedia

The Medical Injury Compensation Reform Act (MICRA) of 1975 was a statute enacted by the California Legislature in August 1975 (and signed into law by Governor Jerry Brown in September) which was intended to lower medical malpractice liability insurance premiums for healthcare providers in that state by decreasing their potential tort liability. MICRA's stated justification, in turn, was to keep healthcare providers as a whole financially solvent, thus lowering the cost of healthcare services and increasing their availability. MICRA's constitutionality was repeatedly challenged during the 1970s and 1980s, but most of it was eventually upheld as constitutional under rational basis review by the Supreme Court of California or the California Courts of Appeal. Almost all of MICRA is still in effect and still part of California law.

Provisions

MICRA consists of the following parts:

Damage cap - non-economic damages are limited to $250,000. Non-economic damages include claims for pain and suffering, loss of consortium, both of which permit the financial recovery for losing limbs, losing sight or hearing, the ability to walk, and all other losses that do not directly relate to economic losses.
Attorney's fee cap - attorney fees that are taken from the amount of the settlement are limited.
Time limits - shortened statute of limitations for actions against healthcare providers.
Binding arbitration.
Periodic payments - doctors are allowed to pay the award over time.

These are codified at a number of different locations in the California Codes: Business & Professions Code Section 6146, Civil Code Sections 3333.1 and 3333.2, and Code of Civil Procedure Section 667.7.

Results

A RAND report estimates that defendants' liabilities were reduced by 30% as a result of MICRA.[1] Between 1985 and 1988, malpractice premiums rose 47 percent.[2] After 1988, the insurance premiums in California experienced a decrease. It is contested as to whether this decrease was a result of Proposition 103. Proposition 103 enacted Section 1861.01 of the California Insurance Code, which explicitly required the rollback of insurance premiums by "at least 20%".

Influence

The perceived success of MICRA in helping California healthcare providers stay financially solvent in turn inspired similar tort reform initiatives in other states. A prominent example was Nevada's Question 3, which was enacted by the voters of that state in 2004 by a 60% majority. Like MICRA, Question 3 set a maximum schedule for attorney's fees, and capped noneconomic damages at a slightly higher number, $350,000. Question 3 was also known as the KODIN Initiative after its main sponsor, Keep Our Doctors In Nevada. KODIN promoted Question 3 by pointing to an alleged trend of Nevada doctors fleeing the state for states with lower malpractice premiums like California. To directly counter KODIN, the Nevada plaintiffs' bar put Questions 4 and 5 on the same ballot, and both 4 and 5 were defeated.

Controversy

Plaintiffs in malpractice lawsuits and trial attorneys, particularly the Consumer Attorneys of California (CAOC),[6] have continuously fought against MICRA since its inception. Due to the $250,000 cap on non-economic damages, lawyers' fees are also restricted due to the attorney fee percentage cap.

In late 2013, Bob Pack, a former NetZero executive,[7] along with Consumer Watchdog and the Consumer Attorneys of California, launched a campaign to place the "Troy and Alana Pack Patient Safety Act" [8] onto the November 2014 ballot. This campaign is largely funded by trial lawyers across California.[9]

One of the Pack Act's components would be to raise the MICRA cap to current inflation standards (approximately $1.1 million), with future annual adjustments. California's health and medical organizations, including the California Medical Association, Planned Parenthood, and community clinics and health centers,[10] quickly came out in opposition to the ballot measure.

Why do Americans pay so much for drugs? Big Pharma got congress to make it illegal to import drugs from Canada and Mexico

VIDEO

This segment was originally broadcast by "60 Minutes" on March 29, 2007. The amount of money spent on lobbying and political contributions by the pharmaceutical industry has continued to increase since. Check out this case study by the New York Times for a more recent update on the skyrocketing cost of prescription drugs in the United States.

Under The Influence
60 Minutes' Steve Kroft Reports On Drug Lobbyists' Role in Passing Bill That Keeps Drug Prices High
2007 Mar 29
Correspondent Michelle Singer
This segment was originally broadcast on April 1, 2007. It was updated on July 23, 2007.

If you have ever wondered why the cost of prescription drugs in the United States are the highest in the world or why it's illegal to import cheaper drugs from Canada or Mexico, you need look no further than the pharmaceutical lobby and its influence in Washington, D.C.

According to a report by the Center for Public Integrity, congressmen are outnumbered two to one by lobbyists for an industry that spends roughly $100 million a year in campaign contributions and lobbying expenses to protect its profits.

One reason those profits have exceeded Wall Street expectations is the Medicare prescription drug bill. It was passed more than three-and-a-half years ago, but as 60 Minutes correspondent Steve Kroft reports, its effects are still reverberating through the halls of Congress, providing a window into how the lobby works.

The unorthodox roll call on one of the most expensive bills ever placed before the House of Representatives began in the middle of the night, long after most people in Washington had switched off C-SPAN and gone to sleep.

The only witnesses were congressional staffers, hundreds of lobbyists, and U.S. representatives, like Dan Burton, R-Ind., and Walter Jones, R-N.C.

"The pharmaceutical lobbyists wrote the bill," says Jones. "The bill was over 1,000 pages. And it got to the members of the House that morning, and we voted for it at about 3 a.m. in the morning," remembers Jones.

Why did the vote finally take place at 3 a.m.?

"Well, I think a lot of the shenanigans that were going on that night, they didn't want on national television in primetime," according to Burton.

"I've been in politics for 22 years," says Jones, "and it was the ugliest night I have ever seen in 22 years."

The legislation was the cornerstone of Republican's domestic agenda and would extend limited prescription drugs coverage under Medicare to 41 million Americans, including 13 million who had never been covered before.

At an estimated cost of just under $400 billion over 10 years, it was the largest entitlement program in more than 40 years, and the debate broke down along party lines.

But when it came time to cast ballots, the Republican leadership discovered that a number of key Republican congressmen had defected and joined the Democrats, arguing that the bill was too expensive and a sellout to the drug companies. Burton and Jones were among them.

"They're suppose to have 15 minutes to leave the voting machines open and it was open for almost three hours," Burton explains. "The votes were there to defeat the bill for two hours and 45 minutes and we had leaders going around and gathering around individuals, trying to twist their arms to get them to change their votes."

Jones says the arm-twisting was horrible.

"We had a good friend from Michigan, Nick Smith, and they threatened to work against his son who wanted to run for his seat when he retired," he recalls. "I saw a woman, a member of the House, a lady, crying when they came around her, trying to get her to change her votes. It was ugly."

When the prescription drug bill finally passed shortly before dawn, in the longest roll call in the history of the House of Representatives, much of the credit went to former Congressman Billy Tauzin, R-La., who steered it through the house.

"It's just a messy process," Tauzin says. "I mean, the old adage about if you like sausage or laws, you should not watch either one of them being made is true. It's a messy process."

Tauzin says that the voting machines were open for three hours "because the vote wasn't finished."

As for arms being twisted? "People were being talked to," he says.

And of Walter Jones' comment that it was the "ugliest night" he had "ever seen in politics in 22 years?"

"Well, he's a young member," counters Tauzin with a laugh. "Had he been around for 25 years, he'd have seen some uglier nights."

It certainly wasn't ugly for the drug lobby which invested more than $10 million in campaign contributions during the last election and has been a source of lucrative employment opportunities for congressmen when they leave office.

Former senators Dennis Deconcini, D-Ariz., and Steve Symms, R-Idaho, and former congressmen like Tom Downey, D-N.Y.; Vic Fazio, D-Calif.; Bill Paxon, R-N.Y., and former House Minority Leader Robert Michel, R-Ill., all registered as lobbyists for the drug industry and worked on the prescription drug bill.

"I can tell you that when the bill passed, there were better than 1,000 pharmaceutical lobbyists working on this," says Rep. John Dingell, D-Mich.

Dingell has been in Congress for 52 years and is the chairman of the House Energy and Commerce Committee, which shares jurisdiction over Medicare. He says the bill would not have passed without the efforts of the drug lobby.

"There is probably a lotta truth in it that the bill was stacked in their benefit. And it's probably also true that it was written by their lobbyists," he says.

Says Jones: "You couldn't even walk to the steps of the Capitol without having somebody, maybe one or two, coming up to you to say, 'Can't you change your vote? Can't you vote for this bill?' "

Why was the drug lobby was so interested in this bill and what did it have to gain? Ron Pollack, the executive director of Families USA, a nonpartisan health care watchdog group, says it all boiled down to a key provision in the legislation.

It prohibited Medicare and the federal government from using its vast purchasing power to negotiate lower prices directly from the drug companies.

"The key goal was to make sure there'd be no interference in the drug companies' abilities to charge high prices and to continue to increase those prices," says Pollack.

Pollack says there's no question that this was prompted by the pharmaceutical lobby.

"They were the ones who wanted to make sure Medicare could charge high prices and to continue to increase those prices," he says.

The drug industry says that competition among private insurance plans that service the Medicare program help keep prices low. But Families USA reported in a January study that Medicare patients are being charged nearly 60 percent more for the top 20 drugs than veterans pay under a program run by the U.S. Department of Veterans Affairs.

For example, Lipitor, a popular cholesterol drug, the cheapest Medicare price is $785 for a year's supply — 50 percent more than the VA's price of $520.

For Zocor, another cholesterol drug, the best Medicare price is $1,485 for a year's supply. The same drug only costs $127 a year under the VA's plan.

Read the full Families USA report

Pollack says the VA successfully negotiates with the drug companies on price.

"Medicare could do the same thing," he says, "but Medicare is prohibited from doing that as a result of this new Medicare legislation."

"What was the logic? Or what was the idea, the rationale behind not giving the government the ability to negotiate drug prices?" Kroft asks Rep. Dan Burton.

Burton says it was simply that the drug companies didn't want it. "They wanted to make as much as money as possible. And if there's negotiation, like there is in other countries around the world, then they're gonna have their profit margin reduced," he says.

Before the vote, Congress was told the program would cost a whopping $395 billion over the first 10 years. In fact, Medicare officials already knew it was going to cost a lot more.

Burton said he and others were misled. "Within two weeks after the bill was passed, everybody knew it was gonna cost well over $500 billion," he says. "And many members of the Congress [who] had voted for it said, 'I would never have voted for it had I known that.' "

Medicare Chief Actuary Richard Foster later told Congress that he revised the cost estimate to $534 billion before the vote, but was told to withhold the new numbers if he wanted to keep his job.

During a Congressional hearing, Foster stated: "It struck me there was a political basis for making that decision. I considered that inappropriate and, in fact, unethical."

Foster said the person who told him to withhold Congress from getting the revised estimates was Medicare boss Tom Scully.

Scully was the administration's lead negotiator on the prescription drug bill, and at the time was also negotiating a job for himself with a high-powered Washington law firm, where he became a lobbyist with the pharmaceutical industry.

"He was negotiating for his job at the same time that the Medicare legislation was being considered. He wound up taking this job 10 days after the president signed this legislation," says Pollack.

It is but one example of the incestuous relationship between Congress and the industry, and just one of the reasons the pharmaceutical lobby almost never loses a political battle that affects its bottom line.

Former Congressman Billy Tauzin, who helped push the prescription drug bill through the House, didn't disagree.

Has the bill been good for the drug industry?

"It's been good for the patients whom the drug industry represents …" Tauzin says. "In terms of profits — [for the drug companies] and volumes, yes."

Says Kroft: "Your old friend, John Dingell, says that of the 1,500 bills over the last eight years dealing with pharmaceutical issues, the drug companies almost, without exception, have gotten what they wanted."

"Yeah … I would think he's correct. They've done fairly well," replies Tauzin.

Why has this lobby been so successful? The former congressman says he believes it's because they stood for the right things.

If Tauzin sounds a lot like a lobbyist for the drug industry, that's because now he is.

Just a few months after the prescription drug bill passed, Tauzin began discussions with the pharmaceutical industry to become its chief lobbyist in Washington. He says it was one of several lucrative offers he's received just before he got some very bad news.

"I got a call from a doctor in Bethesda who said, 'You got cancer. And it's extremely rare. And it could kill ya.' And then everything changed," Tauzin says.

Tauzin had a cancerous tumor removed from his intestines and was treated with a new medicine, called Avastin, that had never been used before on that form of cancer.

The treatment was successful, and as a result Tauzin says he felt he owed his life to the drug industry. After serving out his congressional term, he accepted a $2 million-a-year job as president of PhRMA — Pharmaceutical Research and Manufacturers of America.

"There was an extraordinary moment when my wife literally looked me in the eye and said, 'Look, you're gonna do well wherever you go, Billy … You got a lot a great offers … And maybe you oughta think about working for the people that struggle everyday to try to invent the medicines that save lives like yours.'

"And that was a pretty important moment in my life," Tauzin says. "And it was the moment I decided that this was the work I wanted to do — headaches and all."

Jones and Burton agree that the perception of Tauzin's move is not good.

"I mean, when you're pushing so hard for a bill that's controversial and you have to keep the machine open for three hours to get the one vote necessary to pass it, and then, within a matter of months you go to work for the industry that's gonna benefit from it, it does cause you some concern," says Burton.

They are not the only ones cynical about the decision.

"You push this bill through that produces a windfall for the drug companies. And then a short time later, you go to work for the drug lobby at a salary of $2 million. That doesn't look good," Kroft tells Tauzin.

"There was nothing I could've done in my life after leaving Congress that wouldn't have had — I didn't have some impact on in 25 years in Congress … If that looks bad to you, have at it," Tauzin says. "That's the truth."

In fairness to Tauzin and former Medicare chief Tom Scully, they weren't the only public officials involved with the prescription drug bill who later went to work for the pharmaceutical industry.

Just before the vote, Tauzin cited the people who had been most helpful in getting it passed. Among them:

John McManus, the staff director of the Ways and Means subcommittee on Health. Within a few months, he left Congress and started his own lobbying firm. Among his new clients was PhRMA, Pfizer, Eli Lilly and Merck.

Linda Fishman, from the majority side of the Finance Committee, left to become a lobbyist with the drug manufacturer Amgen.

Pat Morrisey, chief of staff of the Energy and Commerce Committee, took a job lobbying for drug companies Novartis and Hoffman-La Roche.

Jeremy Allen went to Johnson and Johnson.

Kathleen Weldon went to lobby for Biogen, a Bio-tech company.

Jim Barnette left to lobby for Hoffman-La Roche.

In all, at least 15 congressional staffers, congressmen and federal officials left to go to work for the pharmaceutical industry, whose profits were increased by several billion dollars.

"I mean, they — they have unlimited resources. Unlimited," Burton says. "And when they push real hard to get something accomplished in the Congress of the United States, they can get it done."

In January, one of the first things the new Democratic House of Representatives did was to make it mandatory for Medicare to negotiate lower prices with the drug companies.

But a similar measure was blocked in the Senate, due in part to the efforts of the drug lobby.

Novartis Accused of Paying Kickbacks to Boost Exjade Sales

Novartis Accused of Paying Kickbacks to Boost Exjade Sales
By Christie Smythe
Bloomberg Business Week
January 08, 2014

A Novartis AG (NOVN) unit was accused by the U.S. and a group of states of paying kickbacks to a specialty pharmacy to boost sales of Exjade, an iron-control drug that can cause kidney and liver failure.

U.S. District Judge Colleen McMahon in Manhattan today unsealed a complaint filed against Novartis Pharmaceuticals Corp. by the U.S., 26 states and the District of Columbia alleging that the drugmaker had paid kickbacks to BioScrip Inc. (BIOS:US) to encourage patients to refill prescriptions.

Separately, federal and state officials announced that the Elmsford, New York-based specialty pharmacy agreed to pay $15 million to resolve the claims against it.

Federal and state officials alleged that government health programs Medicare and Medicaid paid tens of millions of dollars in reimbursements based on false claims for the drug.

“This arrangement between Novartis and BioScrip was dangerous for patients and is against the law,” New York Attorney General Eric Schneiderman said in a statement. “Our lawsuit against Novartis and our agreement with BioScrip send a clear message: Drug companies cannot pay pharmacies to promote drugs directly to patients.”

Kickbacks, Calls

According to the complaint, Novartis paid kickbacks to BioScrip from February 2007 to May 2012 in the form of patient referrals and rebates. To hold up its end of the bargain, BioScrip made tens of thousands of calls to patients to try to convince them to keep taking the drug, federal and state officials alleged.

Julie Masow, a spokeswoman for Basel, Switzerland-based Novartis, said in an e-mailed statement that the company disputes the allegations in the complaint related to its interactions with BioScrip and intends to defend itself.

The company “is dedicated to improving patient health and supports patient medication adherence programs,” including outreach by pharmacies, Masow said.

Exjade was approved by the U.S. Food and Drug Administration in November 2005 to treat chronic iron overload due to blood transfusions, according to the complaint. In January 2010, the agency required the drug to feature a “black box” warning highlighting the potential for kidney failure, liver failure and gastrointestinal hemorrhage that in some cases were fatal, according to the complaint.

Increasing Refills

Novartis wanted to increase the refills of the drug because “its own market research had shown that a significant percentage of physicians and patients were opting to discontinue Exjade therapy” because of side effects, the officials said in the complaint.

In late February 2007, Novartis told BioScrip that because it generated lower levels of refills compared with other pharmacies, it had been placed on a “performance improvement plan,” according to the complaint.

Novartis “expects that the specialty pharmacies it works with conduct vital patient outreach in a manner wholly consistent with NPC’s commitment to patient care,” Masow said. “BioScrip reached out to patients using its own protocols to provide education, counseling and information about proper administration of the medicine and to fulfill prescriptions that have been prescribed by a patient’s treating physician.”

Officials are seeking triple damages against Novartis and civil penalties under the False Claims Act.

The case is ABC v. DEF, 1:11-cv-08196, U.S. District Court, Southern District of New York (Manhattan).

Baby's Disability Blamed on Kaiser Negligence

Baby's Disability Blamed on Kaiser Negligence
By BARBARA WALLACE
Courthouse News Service
January 02, 2014

(CN) - A Kaiser hospital botched the birth of a baby girl who now has Erb's palsy, her mother claims in a court.

Charnesha Cobb sued Kaiser Foundation Health Plan Inc., Kaiser Foundation Hospitals and the Permanente Medical Group Inc. in San Francisco County Superior Court on behalf of her now 2-year-old daughter, Joy Barnes.

Online medical resources describe Erb's palsy as a shoulder injury that can happen during a breach delivery or when the baby's neck is overstretched during a head-first delivery. The prognosis depends upon the extent of nerve damage.

Cobb blames Kaiser for Joy's injuries, saying in her complaint that the "defendants neglected to adequately select a competent medical staff and to periodically review the competency of its medical staff and failed to adequately monitor its staff."

As a result, "Joy Barnes has been diagnosed with Erb's palsy and is permanently disabled," the complaint states.

Cobb seeks economic and noneconomic damages, past and future medical expenses, loss of future earning and earning capacity, prejudgment interest, costs of suit and a jury trial. She is represented by Thomas Donahue and Rebecca Cucu of Donahue & Horrow in El Segundo, Calif.