Attorney Benjamin Ikuta recently wrote a powerful article on medical malpractice, Medical Injury Compensation Reform Act (MICRA) caps, and the little-known ways in which medical boards often protect medical professionals over the health and safety of the general public. The article was featured in The Los Angeles Daily Journal and is reproduced in its entirety below:
When I practiced as a young defense attorney at a prominent medical malpractice firm, the older lawyers used to joke about “the Butcher.” The Butcher was the nickname the firm gave to a surgeon who provided the firm with copious billable hours given that he was sued so many times after maiming, paralyzing, and killing patients, which included young children. While I am not permitted to disclose more information due to privilege, I always wondered how in the world this doctor was allowed to keep his license. After countless lawsuits, complaints to the Medical Board, and board investigations, he did finally lose his license after it was discovered in the midst of a civil lawsuit that the good doctor had forged an outside provider’s report in a blatant attempt to hide his incompetence. The doctor’s license was not revoked until a decade after the forgery and several years after civil judgment, during which time he harmed many others.
Later, I learned about the powerful advocacy group California Medical Association (“CMA”). The CMA is a well-funded professional organization representing 50,000 physicians with strong ties in Sacramento. Their entire purpose is to thwart any legislative or legal acts that would make it harder for physicians to practice medicine. The CMA is essentially a form of union for doctors. They donate a lot of money to the state’s legislators in return for their “support.” Notably, despite the CMA’s power and influence, 2/3 of California’s physicians have refused to join CMA.
Most are aware of Governor Gavin Newsom’s dinner at French Laundry late last year. What most do not know is that in the infamous pictures, Governor Newsom was dining next to the CMA’s top lobbyist. Using its significant influence in Sacramento, the CMA has been successful in slashing proposed increases on physicians’ licensing fees that the Medical Board relies on for funding. Instead of a 50% proposed licensing fee, the CMA bragged and boasted that they were able to convince the bill’s sponsor to reduce the increase to only 8%, which had not risen for the past 15 years. The CMA, with help from the medical malpractice liability insurance companies, have consistently been able to obstruct key legislation to protect patients and the public.
Of course, the CMA is intricately tied to those insurance companies. In fact, on the “Member Benefits” page on the CMA website, there is even a large advertisement by NORCAL Mutual Insurance Company, which is one of the largest medical malpractice liability insurance carriers in California and is a subsidiary of ProAssurance Group.
Earlier this month, the Los Angeles Times ran several articles on the ineffectiveness of the Medical Board with a few examples of bad doctors allowed to keep their licenses. These doctors were given probation after probation, hardly even a slap on the wrist, for their multiple acts of wrongdoing and gross negligence that left their patients severely injured.
The Medical Board is composed of eight physicians and seven non-physicians, all of two of which are appointed by the Governor. The entire purpose of the California Medical Board is to keep patients safe. According to a 2013 article in the Journal of Patient Safety, avoidable medical errors cause over 40,000 deaths per year in California. Death due to medical malpractice is the third leading cause of death in our state behind cancer and heart disease. Again, these numbers represent preventable medical errors, not just mistakes. Earlier this year, the nonprofit consumer advocacy organization Public Citizen ranked the California Medical Board in the bottom 3rd of all states when it comes to disciplining doctors whose incompetence causes patients harm.
Medical Board records show that there are nearly 11,000 complaints every single year. Of those complaints, only 4% result in any type of discipline, which overwhelmingly involves little more than a slap on the wrist through probation or a letter of reprimand. Less than half of a percent of the original complaints end up in licenses being revoked.
Even when the Board takes action, it takes on average 3 years to complete the investigation and enact discipline. During this time, these physicians are free to continue their practice, often harming other patients during this delay. By not acting quickly, or at all, the Medical Board’s inaction puts patients in danger.
In fact, as shown by the Los Angeles Times articles, even the board members themselves have admitted that they have lost the ability to protect consumers from bad doctors. One of the non-physician members even admitted that the Board goes above and beyond to protect doctors rather than the public. The Medical Board in this month’s newsletter, available at https://www.mbc.ca.gov/News/Newsletter/2021-July.aspx, admitted that as to consumer protection: “[I]t is clear we can do better.”
The LA Times articles, including the article titled “Critics say physicians ‘cartel’ obstructing efforts to punish bad doctors” are excellent and must-reads. However, what is missing from the article is the CMA’s role in the $250,000 MICRA cap. Any settlement over $30,000 must be reported to the California Medical Board as plaintiffs’ attorneys are usually the ones to discover the wrongdoing of a doctor rather than the overworked medical board. Indeed, “the Butcher” would still be maiming patients today if it weren’t for a civil lawsuit.
Each year that the MICRA cap remains in effect, fewer patients injured by preventable medical errors are able to file lawsuits to recover fair compensation for their injuries, as the value of the cap declines and costs increase.
However, every single year that passes, there are less and less medical malpractice lawsuits against bad doctors due to the draconian cap. My firm is one of the very few in California that focuses on medical malpractice due to the 46-year old cap and, currently, we take less than 2% of all cases. Each year that the MICRA cap remains in effect, fewer patients injured by preventable medical errors are able to file lawsuits to recover fair compensation for their injuries, as the value of the cap declines and costs increase. The insurance companies will often spend more than the case is worth defending the case to dissuade firms from taking medical malpractice cases in the future. In turn, there are less and less reports to the medical board of dangerous doctors. Ironically, while MICRA has threatened the lives and wellbeing of patients, it has not even helped doctors. Despite MICRA, there has not been a decrease in malpractice insurance premiums nor has the cap helped in securing patient access to medical care.
In November 2014, voters rejected Proposition 46, which would have raised the $250,000 cap on damages to account for inflation, to about $1.1 million. CMA not only donated millions of dollars to oppose the proposition, but they were the head in opposing the proposition. NORCAL and various other medical malpractice carriers each contributed 8-figure sums to defeat the motion to secure their profits at the expense of both doctors and the public. CMA has already invested substantial time and money in an attempt to oppose the 2022 “Fairness for Injured Patients Act” even as patients continue to suffer.
The day before this article was published, my firm received an intake regarding a 47-year old mother of four who died two months ago after an anesthesiologist and a plastic surgeon failed to appreciate and timely intubate the patient after she suffered from hypoxemia and arrest during an elective liposuction surgery. We currently have four other cases against the same anesthesiologist as he fabricated diagnoses and falsified medical records in order to justify dispersing excessive and unneeded medication to my clients. He illegally dispersed narcotic opioids and other medications under the table, many of which we believe he purchased illegally in Mexico. He even had an ATM set up in his office and required that his patients would pay him in cash, which would not leave a paper-trail and avoid reporting to CURES, California’s prescription monitoring program. He also left his clinic in the hands of another doctor for 11 months to deal with the legal implications of having sex with underage girls in Costa Rica. The physician covering the clinic for those 11 months was allowed to practice despite the Medical Board finding that he sold narcotics in the black market and was frequently under the influence of alcohol and cocaine while practicing.
The surgery occurred while the anesthesiologist was out on bail after being arrested by federal authorities for illegally selling the painkillers and pocketing over a million dollars in the process. The Anesthesiologist was arrested in February of 2019 and his criminal trial has been set for February of 2022.
As part of my investigation into the anesthesiologist, pursuant to a request under the California Public Records Act, I asked for all documents from the California Medical Board. The Medical Board produced nothing besides a letter of reprimand back in 2009 for the anesthesiologist not reporting discipline enacted against him by the Florida Medical Board for more wrongdoing against patients. I wrote a follow-up letter to the Board, stating: “Respectfully, given [the doctor’s] serious history of arrests and convictions relating to both selling opioids as well as sexual-related offenses, we are surprised that there are not more documents.” In response, the Medical Board representative replied: “The Board has provided all public information available…”
The plastic surgeon involved in the death of the mother had probation enacted against her by the Medical Board only seven months before the fatal surgery. The underlying basis for the probation was two separate patients. The first patient was a 40-year old woman who died following a liposuction surgery after the plastic surgeon failed to adequately monitor or chart key vital signs, and failed to adequately follow-up or examine the woman despite concerning post-operative swelling. The second patient was a 42-year old woman who died during a liposuction surgery after the plastic surgeon failed to adequately monitor or chart key vital signs and administered an excessive amount of narcotics and sedatives.
Due to the MICRA cap and the fact that it was unlikely any judge would allow the prior bad acts into evidence, my firm rejected the mother’s case. Both the anesthesiologist and the surgeon continue to practice.
About Attorney Benjamin Ikuta
Benjamin T. Ikuta is a partner at Hodes Milman, LLP , where he focuses his practice in plaintiff medical malpractice cases. He has consistently obtained outstanding results for clients in cases involving birth injuries, cancer diagnosis delays, elder abuse, and other issues.
Before joining Hodes Milman, LLP , Ben litigated cases on the defense side involving skilled nursing and residential care facilities for the elderly. As a result, he has in-depth, insider knowledge on the opposing counsel’s strategies when handling cases.
Contact an Orange County Medical Malpractice Lawyer
Medical professionals must follow strict standards of care to prevent patient injuries. When such standards are disregarded, the outcomes may require the help of a lawyer who has specific experience in medical malpractice cases.
Malpractice cases can be complex and can involve many technical legal concepts and procedures. If a doctor, nurse, or medical professional engaged in any violations that directly injured you or affected your quality of life, you may need to contact a medical malpractice lawyer. Hodes Milman, LLP can offer skilled representation as experienced medical malpractice lawyers with proven case results.
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