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At Your Defense: Raising Noneconomic Damages Cap Bad for EPs and Patients Alike

Reyes, Carlo MD, JD

doi: 10.1097/01.EEM.0000455726.53244.5c
At Your Defense

Dr. Reyes is the vice chief of staff and the assistant medical director of emergency medicine at Los Robles Hospital and Medical Center in Thousand Oaks, CA. He is also a clinical professor of pediatrics and emergency medicine at Olive View/UCLA Medical Center, a health law attorney with Boyce Schaeffer, LLP, in Oxnard, CA, and a founder and the CEO of healthelaw.com, which provides medical-legal education for doctors starting in medical school, through residency training, and beyond.

I recently gave a lecture attended by many emergency medicine residents, and afterwards ran into an attending I had not seen since training. “I think I might have scared the residents a little bit,” I said.

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Figure. No caption a...

He agreed, noting that medical-legal talks can frighten residents into ordering too many tests. That's not good medicine either, he said.

His comment reminds us that the fear of litigation has the deleterious effect of inducing providers to practice defensive medicine. A California proposition on this November's ballot may have a similar effect, increasing health care waste and cost.

California voters will decide Nov. 4 whether the Medical Injury Compensation Reform Act (MICRA) deserves an overhaul. If passed, Proposition 46 will increase the noneconomic damages cap in medical negligence cases from $250,000 to more than $1.1 million, apparently to account for inflation since MICRA was enacted in 1978. The Proposition 46 author cleverly embedded the anti-MICRA provision with others that actually have substantial voter traction: mandatory drug and alcohol testing of all doctors, reporting positive tests to the state medical board, mandatory provider reporting of other providers suspected of drug or alcohol impairment and medical negligence, and requiring providers to consult drug databases before prescribing controlled substances to patients.

Proposition 46, formally named the Troy and Alana Pack Patient Safety Act of 2014, is named after two children killed by a driver under the influence of prescription drugs. It sounds like a real solution to voters, especially amid the prescription drug epidemic in which doctors have been asked to take responsibility for and decrease the ubiquitous misuse of prescription drugs. But keep reading.

The first, obvious, question is: How is the MICRA provision related to the other provisions? The hidden message for voters is that increasing the noneconomic damages cap will improve patient safety. How? I've yet to see a doctor stop, reflect on the high noneconomic damages cap in his state, and then order the right test. Rather, much like what that attending reminded me, the fear of litigation may induce doctors to order more tests to try to get the right diagnosis. Defensive medicine rears its ugly, expensive head, and fear of litigation does not make better doctors but more expensive ones who order unnecessary tests, draining health care of critical resources that the government cannot afford (and will not pay for).

The intent of Proposition 46 is singular: increase the noneconomic damages cap. Why else would this provision be inserted among the unrelated but enticing provisions? Remove the anti-MICRA provision, and Proposition 46 reads like a unified act, one that could pass on its merits. But if Proposition 46 passes, the anti-MICRA provision will have been snuck into law.

California, responding to the malpractice crisis, was the first state to enact a noneconomic damages cap in medical negligence cases. At least 35 states have enacted some form of noneconomic damages cap since 1978. Experts debate whether caps lead to decreased insurance premiums for physicians, but studies show that caps keep premium increases in check. Importantly, studies demonstrate that caps maintain a modest supply of physicians within a state and reduce wasteful defensive medicine practices. (New Engl J Med 2011;364[16]:1564.)

Raising the cap would exacerbate the physician shortage because increasing premiums would decrease the number of practicing obstetricians, neurosurgeons, and other physicians already paying high malpractice premiums. The current health care climate under the Affordable Care Act, which failed to address the existing physician shortage, demands expansion of providers to care for the influx of insured. An increased cap would amplify the physician shortage and decrease subspecialist panel coverage because of an increase in insurance premiums.

The anti-MICRA provision, if passed, provides a template for the remaining states to raise or even eliminate their noneconomic damages cap. Like the ripple effect that MICRA had when it was enacted in 1978, passage of the anti-MICRA provision will induce other states to reconsider their caps. This may not be a good thing for health care or patients.

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