When the Incentive to Save a Life Dies;

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Under state law, it may be cheaper to let children die from malpractice.

The following commentary was published in the Los Angeles Times on Sunday, December 12, 2004. Jamie Court is the president of the Santa Monica-based Foundation for Taxpayer and Consumer Rights and the author of “Corporateering” (Tarcher/Putnam).
The medical horror stories at Martin Luther King Jr./Drew Medical Center have an important moral you might not have considered: If you are a poor patient in a sick hospital in California, your life is too cheap.

A hospital pathologist with a record of misdiagnoses overlooks a patient’s breast cancer. Cost: $25,000 settlement.

An 11-year-old dies after King/Drew doctors remove her healthy appendix without ever diagnosing the pancreatitis that killed her. Cost: $100,000 settlement with the girl’s mother.

The pittance that hospitals and doctors pay for the medical nightmares they create in California is a big factor in why negligence at King/Drew was ignored for so long and why it will occur elsewhere.

The culprit is a 1975 law that few Californians know about unless they are victims of medical malpractice. Under the Medical Injury Compensation Reform Act, or MICRA, the most an injured patient can recover absent tangible expenses — such as lost wages or medical bills not covered by health insurance — is $250,000. In 1975 dollars that amount is equivalent to $71,000 today.

So when a minor dies — with no lost wages to consider — the most the family can receive in court is $250,000, from which an attorney’s fees are deducted. That makes it cheaper to let children die from malpractice in California hospitals than to save them, if the malpractice would cause them to face lifelong medical bills for which negligent doctors or hospitals are liable.

When MICRA is applied to adults, its particularly pernicious effects on hospitals that serve the poor become apparent. If a low-wage gardener dies at King/Drew, the hospital will pay a pittance compared with the cost if a high-salary studio chief is killed by the same act of medical negligence across town at Cedars-Sinai Medical Center.

Of course, minimal financial punishment isn’t the only reason why negligence is often allowed to continue at bad hospitals. Doctors tend to protect their own, even if they are incompetent. Hospitals may avoid doctor discipline because it can be an expensive legal mess that sows staff discord. And malpractice insurers may find it easier and more lucrative to raise premiums than to put bad hospitals and doctors out of business by refusing to insure them altogether.

Even the state medical board doesn’t deal aggressively with dangerous medical practices. Last month, the board’s state-appointed monitor issued a report stating that it had “consistently lagged” in effectively disciplining negligent doctors.

Still, MICRA is an important factor in a situation like the one at King/Drew.

The medical insurance establishment and President Bush are holding up MICRA as a model for the nation. But what was uncovered at King/Drew should be a warning: No one was watching out for the public because it wasn’t in anyone’s financial interest to do so.

Even some of the biggest allies of MICRA, such as Sen. Dianne Feinstein (D-Calif.), have rethought the damages cap and proposed a much higher amount, which would be adjusted over time and based on circumstances.

It’s high time to make sure every life counts in every California hospital.

Consumer Watchdog
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