Is the Legislature Already Admitting a Need for Follow-up Legislation?
As stated in the Assembly Judiciary Committee’s analysis of AB 35, “The author and co-sponsors may wish to clarify in future legislation that statements that are made otherwise confidential pursuant to this provision of the bill would be admissible in criminal proceedings.” Why is this stated?
According to the committee consultant, “…the bill adds a new section to the Health and Safety Code to make specified statements, writings, or “benevolent gestures” (defined to mean “any action that conveys a sense of compassion or commiseration emanating from humane impulses”) expressing sympathy, benevolence, or fault in the provision of health care that are made to either the person who received the health care, or to the family or representative of that person, confidential and inadmissible. The covered expressions include statements regarding sympathy or even fault relating to the pain, suffering, or even death of a person, as well as an “adverse patient safety event or unexpected health outcome.” The scope of the communications covered by this provision is very broad and would appear to apply to virtually every oral or written statement about the cause of a patient’s injury or death. One of the only apparent exceptions is when the “injury or death to one or more persons and that is the result of knowingly or purposefully harmful action.” Also, the confidentiality provision applies only to statements that are made “prior to the filing of a lawsuit or demand for arbitration.” So any statement made after such filing would not be covered by the confidentiality provision. The scope of the confidentiality protection provided for these statements is also extremely broad. Under the bill, the communications would not be “subject to subpoena, discovery, or disclosure[.]” Furthermore, the communications “shall not be used or admitted into evidence in any civil, administrative, regulatory, licensing, or disciplinary board, agency, or body action or proceeding, and shall not be used or admitted in relation to any sanction, penalty, or other liability, as evidence of an admission of liability or for any other purpose.” While this provision would likely prevent all disclosures of confidential communications in court or administrative proceedings, it likely could not be used to prohibit a patient or their family member who were not subject to a court order from publicly disclosing such statements. Otherwise, it would violate that person’s First Amendment right to speak. (See Seattle Times Co. v. Rhinehart (1984) 467 U.S. 20 [holding that a party does not have a First Amendment right to disseminate information obtained during discovery that is covered by a protective order but has a right to disclose information gathered outside of the discovery process].) Finally, while these confidential statements could not be used in any civil, administrative, regulatory, licensing, or disciplinary board, agency, or body action or proceeding, a health care provider could still be sued or subject to disciplinary proceedings on the basis of other information. The particular confidential statements themselves could not be used as evidence against the health care provider in those proceedings. As the Senate Judiciary Committee points out in its analysis of the bill, these confidentiality provisions could be interpreted to shield the admissibility of covered statements in a criminal proceeding: Given the broad language in the provision, specifically the phrase “shall not be used or admitted in relation to any sanction, penalty, or other liability,” it may be read in isolation to restrict the statements or writings from being used in criminal proceedings seeking to impose a criminal sanction or penalty. However, the surrounding references that limit the scope to statements, writings, and gestures made “prior to the filing of a lawsuit or demand for arbitration” and the fact that the specific proceedings listed include an extensive list, “civil, administrative, regulatory, licensing, or disciplinary board, agency, or body action or proceeding,” but do not include any criminal proceedings, arguably make clear that the scope of the provision is not intended to extend into the criminal realm. The sponsors of the bill have also made clear that their intent is not to extend this section to any criminal proceedings.”
You may view the full Assembly Judiciary Committee analysis on AB 35 here.
Public Opposition to AB 35 Emerges
Has any formal opposition arisen on AB 35? Yes. In this last hearing on the bill, the Union of America Physicians and Dentists and American Federation of State, County and Municipal Employees testified in opposition, mainly on process. Their testimony was as follows:
Douglas Chiappetta, M.A., CEO, Union of America Physicians and Dentists
- We have an oppose unless amended position, but not with the substance of the bill but the process in which has taken place
- We voiced concerns with the language and were shut out of the process
- We hope to be able to be a part of the process going forward
- We represent a lot of solo practitioners and we should have been a part of this, we assume there will be a cleanup bill and we would like to be a part of it
Dr. Stuart Bussey, Board President, American Federation of State, County and Municipal Employees
- I realize AB 35 is a consent item today but would like to propose amendments that should be included now or at some point
- A clean-up bill would be ideal
- I have considerable standing to speak on MICRA
- I am a board-certified solo family doctor of 35 years and I have had three frivolous lawsuits filed against me, all dismissed with the help of insurance carrier
- I have been both a plaintiff and defendant expert witness, I am an attorney and have served as president of the same union that helped Brown create MICRA
- Notwithstanding the rapid speed and lack of transparency with this bill, especially to small group and solo doctors in CA, the bill needs to evolve over time, it remains to be seen how many meritorious and non-meritorious cases will merge with these new monitory caps
- I know lower reimbursements will make higher med mal premiums harder for small practice doctors to survive
- I propose AB 35 or a future version exempt solo or small group practices less than 10 and ruan docs from the higher caps
- Would like to see an amendment that broadly addresses other types of medical malpractice addressed
Yesterday, the Assembly concurred on the Senate amendments 66-0. AB 35 is now on the Governor’s desk for signature.
A New Price Tag on Pain and Suffering
As Politico reports, “In 1975, the annual cost of tuition for a California resident at UC Berkeley was $630, you could rent a studio apartment in San Francisco’s Lower Nob Hill for $105 a month and tickets to see Queen live at the Santa Monica Civic Auditorium cost just $6.50.
That’s also the year California enacted the Medical Injury Compensation Reform Act, better known as MICRA, a law that set a pain-and-suffering cap for medical practice cases at $250,000. It hasn’t budged since. Until now.
The Assembly today approved Assembly Bill 35 from Assemblymember Eloise Gómez Reyes (D-San Bernardino) and state Sen. Tom Umberg (D-Santa Ana) – the result of negotiations between lawmakers, doctors, hospitals, insurance carriers and injured patients along with the survivors of loved ones who died from medical malpractice.
Once Gov. Gavin Newsom signs it, as expected, proponents of a statewide initiative to raise the cap will pull the measure from the November ballot as part of a deal they struck with the Legislature. The historic effort sailed through both houses, drawing accolades from both sides of the aisle and making it look deceptively easy. It was anything but.
- MICRA has been the target of intense lobbying, led by an influential coalition created more than three decades ago to protect it.
- Back in 1997, lawmakers introduced two separate bills to increase or even eliminate the cap in some cases, but both died. So did a 1999 bill that would have provided a cost-of-living adjustment to the cap and a similar bill introduced in 2014.
- A 2014 statewide initiative to raise the cap to $1.1 million failed at the ballot box after the measure’s proponents packed it with additional rules such as mandatory drug tests for doctors. Those inflammatory provisions sent physicians groups and other deep-pocketed opponents into high gear.
But now, with skyrocketing inflation and the threat of a new ballot initiative, even MICRA’s defenders saw the handwriting on the wall. So, they struck a compromise:
- Starting Jan. 1, the pain-and-suffering cap for cases not involving a death rise to $350,000, gradually growing to $750,000 over 10 years.
- The limit for cases involving a patient’s death goes to $500,0000 – and to $1 million over the decade.
- The maximum awards would then continue to bump up by 2 percent each year.
The dollar limits aren’t as high as the ballot measure would have allowed, but the deal avoids a costly campaign.
It also produced an uncommon kumbaya moment. “Members,” Assemblymember Marie Waldron (R-Escondido) told her fellow lawmakers on the floor today, “it’s a rare occasion when everyone involved has come to an agreement.””