There is one face that should stay with Valley voters when they mark their ballots on Proposition 46: Brittany Wilkinson.
You may remember that name. She was a Fresno teenager who overcame crippling mitochondrial disease to raise more than $40,000 in funds for research. She died at age 18, when a simple procedure went terribly wrong during a stay at Children’s Hospital Central California. She suffered such excruciating pain, her mother said, that she didn’t want to go on.
Her parents, Doug and Linda Wilkinson, sued the doctor and the hospital. But it wasn’t easy. The legal battle went on for four-and-a-half years before there was a settlement.
That is one reason few plaintiff's lawyers want to take such cases in California. The compensation for the family and the lawyer was capped by amounts set nearly 40 years ago.
As advocates point out, the average home price then was $42,000 and gas was 57 cents a gallon. Adjusted for inflation, the cap would be $1 million today. In addition, awards often are based on the victim’s earning potential, which discriminates against the young, the elderly and the disabled.
Proposition 46 would do three things: Increase the cap on pain-and-suffering awards paid to patients harmed by doctors, require drug testing of doctors and create a prescription database.
That last item reflects the passion of another noble effort in the Proposition 46 debate. And that’s from Bob Pack, a man whose two children were killed by a “doctor shopper” driving high on prescription drugs.
His pain remains palpable. His urgency to confront this easy-to-track crime is real. His efforts to require doctors to list the narcotic prescriptions on a database all doctors must share are not only realistic, but will make a difference.
Here is the back story: In 1975, damages were out of control and doctors were fleeing California. So the state capped awards for pain and suffering at $250,000 — which seemed a lot then but now appears paltry.
Largely due to the cap, California became one of the most profitable states in the nation for companies that sell malpractice insurance — and those companies want to keep it that way – hence their opposition to Proposition 46.
But raising the cap is unlikely to provoke the dire consequences predicted by Proposition 46 foes. Wisconsin also has a cap, but at $750,000 it’s three times higher than California’s. Yet Wisconsin has the lowest malpractice rates in the nation.
Insurance companies are stooping especially low in attacking the drug-use database. Many “No on 46” ads say the database is open to hacker attacks and broadly hint that your medical information will be out there for all the world to see. The database is no more vulnerable to attacks than insurance company records, which also include patient drug histories. This is worse than a scare tactic because the insurance companies know it’s not true.
The drug testing proposal is a sign of the times. Substance abuse crosses all demographic lines, and doctors get no immunity with their diplomas. If it is important to drug test police officers and bus drivers, certainly those who literally hold our hearts in their hands should be cleared as well.
Some, however, see the pee-in-a-cup language as a scare tactic foisted on the public by Proposition 46’s main proponent — Consumer Watchdog.
Consumer Watchdog is an opportunistic organization that makes money by collecting something called “intervenor” fees on issues that go before California’s insurance commissioner. The group is defiantly opaque about who funds it. Its main job is not to protect the consumer, but to enrich its benefactors – lawyers.
Attorneys have ponied up nearly all of the $10 million for the “Yes on Proposition 46” campaign; their sole interest is seeing the pain-and-suffering cap raised to $1.1 million — dramatically increasing their cut from successful lawsuits,
So there’s truth in the ads that say lawyers are behind Proposition 46 on the Nov. 4 ballot. But another “hidden truth” is that insurance companies have spent $57 million -- and counting -- to defeat it.
We deplore the tactics of the insurance companies; we find the lawyers hiding behind the badly mislabeled Consumer Watchdog outfit reprehensible.
But raising the pain-and-suffering caps will not do lasting damage to California consumers or patients. And we believe the prescription-painkiller database might do a lot of good.
Bob Pack didn’t link up with Consumer Watchdog until his efforts to require doctors to use his prescription painkiller database were rebuffed by the Legislature — which has many members who have gotten contributions from the insurance industry. Pack’s work, his family’s legacy, deserves better than this.
Brittany's family does, too. So put aside the distasteful politics and greed, and remember that what happened to the Pack and Wilkinson families could happen to your family. We recommend “yes” on Proposition 46.