MICRA, approved by California voters in 1974, limits noneconomic damage payouts in medical malpractice cases and has been the main reason medical liability insurance rates in the state are only in the middle of the pack nationally despite the state’s long-earned reputation as one of the most litigious in general. Focus-group research led trial lawyer advocates to tack on a provision prescribing drug testing for doctors to improve the measure’s chances [James Hay, San Diego Union-Tribune; Legal NewsLine and more; ABA Journal] Some predict that the impending lawyers-vs.-doctors battle, with various allies brought in on both sides, will be the most expensively fought ballot measure in history. Earlier coverage of MICRA here.
- Radiologist Saurabh Jha had me on his popular podcast a while back to discuss the history of malpractice law. Now he’s written a substantial piece (link to article, gated) on my book The Litigation Explosion (1991) for the Journal of the American College of Radiology which has in turn touched off a discussion on professional Twitter;
- Certificate-of-need (CON) laws in 35 states allow incumbent firms to raise legal objections to entry by new competitors. Bad idea generally, and especially when the service involved is ambulances [John Stossel; Cato Daily Podcast with Caleb Brown and Larry Salzman of the Pacific Legal Foundation, which is suing to challenge Kentucky law]
- Cato’s Robert A. Levy discusses some of the common law background of tort and contract, including medical misadventure [The Bob Harden Show, radio]
- Trial lawyers trying yet again to lift California MICRA limits on medical malpractice recoveries [AP/KTLA via TortsProf] “Pennsylvania high court tosses seven-year medical malpractice limit” [Harris Meyer, Modern HealthCare via TortsProf]
- Politicized social justice curriculum reaches med school [AnneMarie Schieber, Martin Center]
- No repeal of Feres doctrine, but administrative claim fund could bypass: “Military medical malpractice victims could see payouts from Defense Department under new compromise” [Leo Shane III, Military Times]
- Whether or not California’s 1975 MICRA law limiting medical liability serves as a model for anything national, its results merit study by other states [H. Thomas Watson, Robert H. Wright, and S. Thomas Todd, WLF]
- No, Kaiser Health News and Scientific American, a 1-in-3 rate of post-marketing drug safety alerts does not prove FDA too lax [“Scott Alexander,” Slate Star Codex]
- Jim Hood Watch: “Mississippi AG, with the help of outside attorneys, sues pharma companies over allegedly unapproved drugs” [Jessica Karmasek, Legal Newsline]
- When deconstruction met evidence-based medicine and denunciations of “microfascism” ensued [Dave Holmes et al., International Journal of Evidence-Based Healthcare, 2006 via Nicholas Christakis]
- Sen. Joe Manchin’s “approve one opioid, yank another from market” bill to tie FDA hands is a bad idea [Jeffrey Singer, Huffington Post]
- Death by a thousand clicks: what Boston doctors can’t stand about electronic medical records [John Levinson, Bruce Price and Vikas Saini, WBUR]
Trial lawyer and inveterate Litigation Lobby booster Bruce Braley lost his Iowa senate bid (“He comes across as arrogant, and I think it’s because he is,” said an unnamed Democratic official.) Sen. Mark Pryor, chief Senate handler of the awful CPSIA law, lost big.
Massachusetts voters again rejected Martha Coakley, whose prosecutorial decisions we have found so hard to square with the interests of justice. The Wisconsin Blue Fist school of thought, which sees organized government employees as the natural and truly legitimate governing class, met with a rebuff from voters not only in Wisconsin itself but in neighboring Illinois (where Gov. Quinn, of Harris v. Quinn fame, went down to defeat) and elsewhere. Colorado voters rejected GMO labeling, while a similar Oregon bill was trailing narrowly this morning but not with enough votes to call.
California voters rejected Prop 46, to raise MICRA medical liability limits, require database use and impose drug testing of doctors, by a 67-33 margin, and also rejected Prop 45, intensifying insurance regulation, by a 60-40 margin (earlier).
I’ve written a lot at my Free State Notes blog about the governor’s race in my own state of Maryland, and unlike most others was not surprised at Larry Hogan’s stunning upset victory. The politics category there includes my letter to Washington Post-reading independents and moderates about why they should feel comfortable electing Hogan as a balance to the state’s heavily Democratic legislature, as well as my parody song about what I thought a revealing gaffe by Hogan’s opponent, Lieutenant Governor Anthony Brown.
Besides Prop 46, which would massively raise the MICRA limit on noneconomic damages in medical liability cases and subject doctors to mandatory drug testing and other burdens — and which has been opposed by every large California newspaper as well as by the ACLU of California — there’s Prop 45, to intensify the state’s already extensive system of insurance rate regulation. Ian Adams warns against its faults at City Journal.
- ObamaCare challenge: D.C. Circuit vacates Halbig decision for en banc rehearing [Roger Pilon, earlier]
- ACLU and SEIU California affiliates oppose trial lawyers’ higher-damages-plus-drug-testing Proposition 46 [No On 46, earlier] As does Sacramento Bee in an editorial;
- Rethinking the use of patient restraints in hospitals [Ravi Parikh, Atlantic; legal fears not mentioned, however]
- Certificate of need regulation: “I didn’t know the state of Illinois had a standard for the maximum permissible size of a hospital room.” [John Cochrane]
- In China, according to a study by Benjamin Liebman of Columbia Law School, hired malpractice mobs “consistently extract more money from hospitals than legal proceedings do” [Christopher Beam, The New Yorker]
- Overview of (private-lawyer-driven) municipal suits on painkiller marketing [John Schwartz, New York Times, earlier] More: Chicago’s contingency deal with Cohen Milstein on opioid lawsuit [LNL] More: Rob Green, Abnormal Use.
- “So In The End, The VA Was Rewarded, Not Punished” [Coyote]
- Doctor criticized on Science-Based Medicine blog proceeds to sue [Steve Novella, Orac]
- “Can you imagine Google becoming a health company?” Sergey Brin: doubt it, field’s “just so heavily regulated” [Michael Cannon/Cato, David Shaywitz]
- “One Box of Sudafed Over the Line: Florida Woman Arrested for Trying to Relieve Allergy Symptoms” [Jacob Sullum]
- MICRA battle: survey finds OB-GYNs in Los Angeles County pay average $49,804 a year for coverage, in Long Island where there’s unlimited liability it’s $196,111 [Legal NewsLine]
- Medical liability claims fall in Wisconsin [Althouse] And Pennsylvania [TortsProf]
- FDA wants to look over drugmakers’ shoulders when they communicate with consumers, not an easy formula for social media [Elizabeth Nolan Brown]
- “The reason that we are being required to measure BMI isn’t because a patient’s BMI has any meaningful clinical use … it’s that the BMI can be measured.” [White Coat]
- Congress responds to Veterans Administration health care scandal by throwing huge new sums at care [Nicole Kaeding, Chris Edwards, Cato] “Every Senior V.A. Executive Was Rated ‘Fully Successful’ or Better Over 4 Years.” [NYT via Instapundit] “VA Hospitals aren’t included on the federal government’s Hospital Compare web site” [White Coat]
- Canadian judge quashes as vexatious suit over non-admission to medical school [Winnipeg Free Press]
- Brain-damaged child cases: “14.5 Million Reasons Physicians Practice Defensive Medicine” [White Coat, Cleveland] “North Carolina Jury Deadlocks in John Edwards’ Malpractice Trial Against Doctor” [Insurance Journal, emergency medicine]
- “Medical Licensing in the States: Some Room for Agreement — and Reform” [Charles Hughes, Cato]
- “NY Launches Statewide Med Mal Settlement Program” [NYDN via TortsProf]
- “Unlucky Strike: Private Health and the Science, Law and Politics of Smoking” [John Steddon and David Boaz, Cato program] Here’s the long-awaited segue to complete prohibition: British Medical Association recommends banning tobacco permanently for persons born after 2000 [WaPo]
- Sneaky: California ballot language undoing MICRA liability limits “buried in an initiative titled The Troy and Alana Pack Patient Safety Act of 2014.” [Yul Ejnes, KevinMD]
- Trial lawyer push to weaken MICRA, the medical damages cap, could spark most expensive ballot measure struggle in California history [Legal NewsLine]
- Why the FDA should lay off 23andMe [Robert Green and Nita Farahany, Nature via Volokh, earlier]
- SEIU to West Coast hospitals: play ball with our organizers or we’ll arrange to cap your execs’ pay [Bloomberg]
- Video of panel discussion on new book A Conspiracy Against ObamaCare [Randy Barnett et al., more]
- Louisiana high court throws out $330 million award to state, federal governments over marketing of Risperdal [NOLA.com/Times-Picayune, Eric Alexander/Drug and Device Law]
- “If Obamacare Doesn’t Kill Small Medical Practices, Bureaucratic ICD-10 Coding Requirements Might” [Tuccille]
- FDA goes after antibacterial soap. Wisely? [White Coat]
- No, ma’am, I’m not going to diagnose your kids with PTSD after your low-speed auto accident, but I’m sure some other doc will [White Coat]
- In time to avert catastrophe? “FDA reboot of antibiotic development” [David Shlaes] Role of price controls in shortages of sterile injectables [ACSH]
- Trial lawyers launch campaign to roll back MICRA, law that has limited California med-mal payouts [KPBS, L.A. Times]
- DNA panopticon beckons: “Mississippi law requires cord blood from some teen moms” [Emily Wagster Pettus, AP, earlier]
- Dear N.Y. Times: please make up your mind whether it’s OK to break health privacy laws [SmarterTimes]
- Committee of AMA decides on schedules by which doctors are paid. And you were expecting it to be done how? [Arnold Kling]
- “The more your doctor worries about getting sued, the more you’ll end up spending on medical tests” [MarketWatch on Michelle Mello study in Health Affairs] Oklahoma high court used strained rationale to strike down certificate of merit law [Bill of Health]