Despite the parents’ complaints to the Medical Board, the doctors were allowed to continue practicing and prescribing during lengthy investigations and in many cases even after being sanctioned, with some of the doctors being responsible for multiple deaths. The Medical Board had also failed to use a statewide prescription database that could have helped identify problem doctors for proactive disciplinary action.

The Medical Board’s failure to protect consumers is distressing, because the promise that it would effectively discipline the state’s miscreant doctors was an essential factor in the passage of California’s Medical Injury Compensation Reform Act of 1975, or MICRA. That’s the law that limits compensation for Californians who have been harmed by medical negligence, with a cap on jury damage awards that has not changed in 38 years. Parents, like those who testified at this hearing, are limited to $250,000 in compensation for the loss of a child, no matter how egregious the negligence that led to their death.

Sad to say, the recalcitrance of California’s Medical Board to inflict punishment on wrongdoing doctors is not that unusual. A study of the National Practitioner Data Bank by the consumer group Public Citizen in 2007 yielded some startling statistics about inaction nationally:

Only 8.6% of doctors who made two or more malpractice payments were disciplined by their state board.

Only 11.7% percent of doctors who made three or more malpractice payments were disciplined by their state board.

Only 14.8% percent of doctors who made FOUR or more malpractice payments were disciplined by their state board.

Only 33.3% of doctors who made 10 or more malpractice payments were disciplined by their state board – meaning two-thirds of the doctors in this group of the most egregious repeat offenders were not disciplined at all.

By the way, that same study found that it’s a relative handful of doctors – less than 6 percent – who have been responsible for nearly 58% of malpractice payments since 1991.

Public Citizen sent a letter to Gov. Jerry Brown in 2011 detailing its concerns with the Medical Board of California.

This report documents the failure of the Medical Board to take any disciplinary action against 710 physicians in California, all of whom were disciplined (had clinical privilege actions against them) by California health care organizations, mainly hospitals, but also by other health care organizations such as health maintenance organizations and ambulatory surgical centers. Of these 710 physicians, the health care organizations’ peer reviewers determined that 102 were an “Immediate Threat to Health or Safety” of patients. The peer reviewers had seriously disciplined almost all of them, yet the Medical Board still took no disciplinary action.

With the Medical Board apparently unwilling to hold physicians fully accountable for their actions, and MICRA making it next to impossible to seek justice let alone fair compensation in court, the safety of Californians remains at best in question and at worst at risk. Even the worst of the worst doctors, meanwhile, skate by with little professional repercussion.

–J.G. Preston and Eric Bailey

No related posts.

The latest example comes from the legal newspaper, the Los Angeles Daily Journal, which on Feb. 13 published its review of the top verdicts in California in 2012. (The stories on the paper’s website are available only to subscribers.) Seven of the top eight plaintiffs’ verdicts by dollar amount involved corporate or government plaintiffs. This continues a trend; in 2011, seven of the nine largest verdicts in California went to corporate plaintiffs.

Here’s a rundown of those big 2012 verdicts, with links to accounts from other publications:

1) Apple Inc. v. Samsung Electronics Co. Ltd. A federal jury in San Jose awarded nearly $1.05 billion to Apple, upholding the majority of the computer giant’s claims that Samsung had infringed on its patents in designing smartphones and tablet computers. The verdict is being appealed.

2) FDIC as Receiver for IndyMac Bank v. Van Dellen A federal jury in Los Angeles awarded $168 million in damages to the Federal Deposit Insurance Corporation, which had seized IndyMac Bank when it collapsed. The verdict was against three former IndyMac executives found negligent in approving loans to homebuilders. But as the Daily Journal points out, “some significant complications remain in the case – including whether the $168 million can be paid.”

3) Chopourian v. Catholic Healthcare West The only one of these top verdicts involving an individual plaintiff saw a federal jury in Sacramento award $167 million to a physician’s assistant who was sexually harassed and retaliated against at the hospital where she worked and was fired. The verdict was later reduced to $82 million by the judge, and the two sides reached a confidential settlement for an undisclosed amount.

4) Mformation Technologies Inc. v. Research in Motion Ltd. Another technology case that saw a jury in San Francisco federal court award $147 million to a software company that said the maker of BlackBerry smartphones had infringed on its patent. However, the judge wiped out the verdict shortly thereafter, and Mformation has appealed.

5) Grail Semiconductor v. Mitsubishi This verdict by a state court jury in San Jose awarded $124 million to a semiconductor company in a breach of contract suit after the company alleged Mitsubishi had illegally used confidential information. But the court later vacated the damages award, and a new trial will be held to determine damages.

6) Brocade Communications Systems Inc. v. A10 Networks Inc. Another case involving infringements of patents and copyrights saw a federal jury in San Jose award $112 million in damages. Last month a judge reduced the verdict to $60 million for some of the claims, with a new trial to be held to determine damages for other claims.

7) Union Pacific Railroad Co. v. Santa Fe Pacific Pipelines This case involving the value of pipeline easements on railroad right of way resulted in a verdict of just over $100 million in state court in Los Angeles.

8) In Re: TFT-LCD (Flat Panel) Antitrust Litigation A federal jury in San Francisco awarded $87 million in damages after finding Toshiba had been involved in a price-fixing conspiracy. The case was later settled for $30 million.

The other lesson to be learned here, aside from the fact that the largest verdicts are typically awarded to corporate plaintiffs, is that the dollar amount that makes the headline in the immediate wake of the verdict is rarely the amount that actually changes hands.

–J.G. Preston

The latest incidents penalized by the California Department of Public Health — all stemming from events that state health officials agree should never happen in a hospital — included four deaths, an operating room fire that led to second-degree burns of a patient, and two cases in which a surgeon performed the wrong surgical procedure. In one of those cases a surgeon removed the healthy kidney from an 85-year-old man who had a suspected cancerous mass on the other kidney. There were also five cases in which patients had to undergo additional surgeries to remove items that had been left in their bodies after the first operation.

Just in the last six months CDPH has issued 39 penalties for hospital “never events.” Since the agency began issuing these penalties in 2007 it has fined 141 of the state’s acute-care hospitals for 254 events. Two of the hospitals cited this week (Mission Hospital Regional Medical Center in Mission Viejo and UCSF Medical Center in San Francisco) have now been penalized six times.

One of the patients who died inexcusably was a 29-year-old woman who was undergoing an outpatient procedure to remove a birthmark from her upper lip at Kaiser Foundation Hospital in Oakland. She died of an embolism caused when a surgical laser introduced gas bubbles into her bloodstream. The physician involved had not been trained in the use of the laser and had not read the instruction manual for the device.

In another case, at Kaiser’s South Bay Medical Center in Harbor City, a woman undergoing surgery to repair bleeding in her digestive tract bled to death when she was given an anticoagulant instead of the medication to promote blood clotting the surgeon had called for.

The latest penalties come on the heels of two other disturbing reports about patient safety. A study by researchers at the Johns Hopkins University School of Medicine found totally preventable surgical “never events” occur at least 4,000 times a year in the United States. And the physician president of The Joint Commission, a non-profit that accredits health care organizations in the U.S., said hospital care in this country is 3,000 times less safe than air travel.

These numbers are coming from doctors, not lawyers. The medical profession understands there’s a serious problem. Yet California’s unjust MICRA law continues to limit compensation for those harmed, not only through no fault of their own, but by medical catastrophes that should never, ever happen. These egregious medical errors need to stop, but when they do happen, those responsible need to be held fully accountable to those who are harmed.

–J.G. Preston and Eric Bailey

But look very carefully at the chart below…you’ll see in 2011 states that don’t have caps on malpractice damage awards actually had 22% more doctors, relative to their population, than states like California that have such caps:

These numbers come from as pro-doctor a source as you can find: the American Medical Association. (Here’s a list of the states with their cap status.)

You can’t use these numbers to prove that doctors prefer not having caps on damage awards. But they also make a strong argument against the notion that not having caps leads to some sort of “doctor drain.”

The latest edition of the AMA’s annual Physician Characteristics and Distribution also shows that the number of physicians in the U.S. continues to rise faster than the population and is now at a record level:

The number of doctors per capita in the U.S. is now double what it was in 1970.

–J.G. Preston