Newsletter XXII November 2001
Dinner to raise funds for disaster relief
Campaign addresses antibiotics awareness
Executive Director Notes – California’s Medical Injury Compensation Reform Act (MICRA)
Clark County Medical Society New Members for September 2001 and October 2001
Applicants To Go Before Credentialing Committee
Clark County Health District Disease Statistics – September 2001
The Clark County Medical Society is
partnering with
Reservations are required to attend this event. For information and to make a reservation, call CCMS at 739-9989. Buffet dinner and meeting space are provided courtesy of Sunrise Hospital CEO Allan Stipe.
In an effort to raise awareness
regarding the seriousness of antibiotic resistance, Governor Kenny Guinn
designated the week of
This NAA was initiated by the Clark County Health District and Health Plan of Nevada and is composed of members from public and private agencies/companies. Participants in the task force include physicians, microbiologists, pharmacists, hospital infection control practitioners, healthcare companies, and state and local health officials. The goal of NAA is to increase public awareness of the dangers of inappropriate antibiotic use.
The task force will educate the
public and medical providers and work as a statewide team to try and halt the
development of bacteria that are resistant to antibiotics. Members of NAA are
committed to reducing the spread of antibiotic resistance in
“We formed this taskforce to address the growing issues surrounding antibiotic resistance,” said Dr. Kwalick, chief health officer for the Clark County Health District.
"The recent terrorist attacks on our country have caused great concern and increased the demand for unneeded antibiotics among people across the nation. While their concerns are understandable, it is even more important that we continue our educational efforts in order to better protect the population at large."
The task force is divided into four subcommittees, surveillance, infection control, public awareness and provider intervention. To date, the task force has developed the healthcare guidelines and begun provider education, distributed materials to child care centers and, with pro-bono services provided by Virgen Advertising.
“To effectively reduce antibiotic
resistance in
In addition to the Clark County
Health District and Health Plan of Nevada, current members include the State of
Medical professionals and other interested parties who wish to obtain more information on antibiotic resistance or NAA, contact NAA Executive Director Donna Riddle at (702) 383-1378.
Raj Chanderraj, M.D.,
2001-2002 CCMS President
Aristotle wisely made this remark centuries ago and it could never be more appropriate during these turbulent, tragic and trying circumstances of our present society. In our eagerness to fight back against terrorists, our passions should not be so aroused to compromise the law, as nobody in the world preaches nor practices it more than this country. Let us not drift back into the McCarthy days but move forward to curbing the plague of terrorism (practiced by people with no respect to law and order) and at the same time respecting the law.
Malpractice insurance is another
legal topic that is widely talked about in our conversations - significant
increases in jury awards in contrast to the smaller number of claims filed gave
reason enough to
What can and what should we do? There are short term and long term alternatives. In the short term, we can look for other companies that might want to come in and give lower rates. We can also look for, in an expeditious manner, self-funded insurance. Both these alternatives are possible but will not control the rise in our premiums until we have long range plans.
The long term alternatives are difficult but not beyond our reach. They require more determination and hard work:
(1) We need to involve the public in a well coordinated, planned media blitz in moving them to talk about Tort Reform and let them convey this message loud and clear to legislators.
(2) We need to increase our strengths (coming together as a medical society and other organized entities) and voice a single unequivocal message, both by what we say and by our check books, to our legislators that the present malpractice crisis is unacceptable to deliver optimal health care to the community and without Tort Reform, there will soon be migration of talented doctors out of the state.
In the past when the NSMA tried to bring Tort Reform, we were alone. Presently, we have a large number of allies, especially the managed care industry, the insurance industry, and a significant number in the legal profession, who are eagerly waiting for us to take the lead. They are all wondering when the physician community is going to unite on their most important survival issue.
Let us move from the physician lounge conversation to the action front because: “WE MUST BE THE CHANGE WE WISH TO SEE.”
·
Raul T. Meoz, M.D.,
has been named as fellow of the
·
The Shearing-Westfield Eye Institute raised
almost $20,000 at a fundraiser to benefit the Friends of the Children of Lascahobas (
Nov. 1
Fundraiser for “
Nov. 3
Enterprise Health Care and
Nov. 8
“A Physician’s Compliance Program” with speaker Kenneth Osgood, M.D. for the Nevada Medical Group Management Association, Southern Chapter. Call Stuart, 648-5700, for reservations.
Weldon (Don) Havins,
M.D., J.D., CCMS Executive Director and Special Counsel
When that day arrives, as it inevitably must, mandating health care tort reform, physicians should be cognizant of the “gold standard” Medical Injury Compensation Reform Act (MICRA) tort reform passed by the California Legislature in 1975, which continues to serve the public, as well as health care providers, to this day.
History
A report by the California Assembly
Select Committee on Medical Malpractice enumerated many causes leading to the
malpractice insurance crisis of 1975.
Among these was an increase in the number of malpractice claims filed,
the average closing costs of claims, an increase in the number of greater than
$300,000 settlements and verdicts, and a 400% increase in malpractice insurance
rates between 1968 and 1970. A
Department of Health, Education, and Welfare Commission published a study of
the malpractice insurance problem in 1973 made several recommendations but
concluded that the problem required individual State legislative
resolutions. In the Spring
of 1975, an undetermined percentage of
In response, Governor Edmund G. (Pat) Brown convened a special session of the California Legislature to deal with the situation. In his proclamation statement, he noted that the cost of medical malpractice insurance had risen to levels which many physicians and surgeons found intolerable, that the inability of doctors to obtain such insurance was endangering the health of the people, and that many hospitals were threatened with closing.
The Legislature convened on
there is a major health care crisis in the State attributable to skyrocketing malpractice premium costs and a resulting potential breakdown of the health delivery system, severe hardships for the medically indigent, a denial of access for the economically marginal, and depletion of physicians such as to substantially worsen the quality of health care available to citizens of the state.
The Legislature, appropriately using its proclaimed constitutionally mandated police powers to pass laws in furtherance of the public interest, found this bill to be a “statutory remedy adequate and reasonable.”
The major provisions of the MICRA law are discussed below.
Non-economic Damage
Limitation In Medical Negligence Actions
Section 3333.2 of the California Civil Code provides “[i]n no action shall the amount of damages for non-economic losses exceed two hundred fifty thousand dollars ($250,000).” The statute restricts this limitation to professional negligence, by act or omission, “provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.” This limit has been applied to non-economic damages whether brought by the patients themselves or by survivors who initiate litigation via a wrongful death action.
The non-economic damages limit applies to the injury rather than to the number of defendants; thus, a single injury proximately (legally) caused by the negligence of several health care professionals is restricted to a maximum of $250,000 in non-economic damages. Following the common law rule that independent successive acts producing separate injuries permit separate recovery for each negligent act, a single health care provider who proximately and negligently causes more than one separate and distinct injury entitles the plaintiff to a maximum of $250,000 in non-economic damages for each injury.
Additionally, where medical malpractice by a health care provider results in both a survival action by the decedent’s estate and a wrongful death action by the decedent’s children, each action is subject to a separate $250,000 non-economic damage award because there are separate injuries arising out of the same negligent act. Damages recovered in a wrongful death action must be shared by all the heirs; thus, a surviving spouse may receive substantially less than maximum possible $250,000.
Collateral Source
Benefit Admissibility
Section 3333.1 (a) permits a health care provider to introduce evidence of collateral source benefits payable to the plaintiff as a result of the plaintiff’s personal injury from the sources of social security, disability insurance, health or accident insurance, workers compensation, and/or group plan benefits. If such evidence is admitted by the defendant, the plaintiff is entitled to provide evidence as to the costs of these benefits. Section 3333.1(b) provides that where such evidence is introduced in a professional negligence action, the provider of the benefits is precluded from recouping its payments. This effectively shifts the costs of health care damages from medical malpractice insurers to general health care insurance providers.
Governmental source benefits are not paid to the patient, but rather to the provider of medical services. Thus, Medi-Cal payments are not considered collateral source benefits under section 3333.1. Medicare and other federally funded collateral source benefits are also inadmissible. Benefits received from county hospitals are inadmissible because the county is entitled to reimbursement from a tort recovery.
If benefits payable to the plaintiff are provided by a self-funded employee benefit plan, ERISA will preempt section 3333.1 making evidence of this collateral source benefit inadmissible.
Periodic Payments of
Future Damages
California Code of Civil Procedure Section 667.7 provides that the court, on the request of either party, shall order periodic payments for future damages of $50,000 or more. A request for periodic payments must be made prior to entry of judgment. Future damages include damages for future medical treatment, care or custody, loss of future earnings, loss of bodily function, and future pain and suffering. Periodic payments means payments “at regular intervals.”
Attorney Contingency
Fee Limits
California Business and Professions Code Section 6146, amended in 1987, provides as the maximum attorney contingency-fee contract limits in medical malpractice actions: 40% of the first $50,000 recovered, 33% of the next $50,000; 25% of the next $500,000; and 15% of any excess over $600,000. These limits apply whether the recovery is by settlement, arbitration, or judgment, or whether the person for whom the recovery is made is a responsible adult, an infant, or a person of unsound mind. There is no provision authorizing fees in excess of this statutory limit; however, this limitation does not apply to an award for negligent injury occurring outside the scope of practice of the practitioner’s license. Thus, section 6146 did not apply to the negligence and willful misconduct of a psychiatrist who seduced a plaintiff while she was his patient.
Statute of
Limitations for Medical Malpractice Actions
California Code of Civil Procedure Section 340.5 provides that actions for medical malpractice under MICRA shall be three years from the date of the injury or one year from the time the plaintiff discovers, or should have reasonably discovered, the injury. “In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose, in the person of the injured person.” Actions by a minor shall be filed within three years from the date of the “wrongful act” except that if the minor is less than six years of age, the action shall commence within three years or prior to his eighth birthday, whichever is longer. The use of the term “wrongful act” has been construed to mean “injury.” The term “injury” as used in this section means both a person’s physical abnormality and its negligent cause, not necessarily the alleged wrongful act itself. Injury occurs, and the three year period accrues when an appreciable harm is first apparent. The statute shall be tolled for fraud or collusion by the parent or guardian and the defendant’s insurer or health care provider.
The 90 Day Notice of
Intention to Sue
California Code of Civil Procedure Section 364 provides that “no action based upon a health care provider’s professional negligence shall be commenced unless the defendant has been given at least 90 days prior notice of the intention to commence the action.” The notice must include the basis of the claim and the type of loss sustained, including the specific nature of the injuries. If notice is served within ninety days of the statute of limitation’s limit, the statute of limitations will extend for ninety days from the date of service of notice. Failure to comply has no effect on the action but does subject the attorney to disciplinary action by the state bar. In a small claims court action for medical malpractice, the plaintiff will be given a continuance so that the notice requirement may be satisfied. The tolling provisions apply only to negligence causes of action and not to those based on intentional torts such as battery.
Compulsory
Arbitration Agreements
California Code of Civil Procedure Section 1295 provides for and authorizes compulsory arbitration agreements in medical service contracts. The agreement must be the first article of the contract, and must use the following language:
It is understood that any dispute as to medical malpractice, that is as to whether any medical services rendered under this contract were unnecessary or unauthorized or were improperly, negligently or incompetently rendered, will be determined by submission to arbitration as provided by California law, and not by a lawsuit or resort to court process except as California law provides for judicial review of arbitration proceedings. Both parties to this contract, by entering into it, are giving up their constitutional right to have any such dispute decided in a court of law before a jury, and instead are accepting the use of arbitration.
Immediately before the signature line the following must appear in at least ten point red type:
NOTICE: BY
SIGNING THIS CONTRACT YOU ARE AGREEING TO HAVE ANY ISSUE OF MEDICAL MALPRACTICE
DECIDED BY NEUTRAL ARBITRATION AND YOU ARE GIVING UP YOUR RIGHT TO A JURY OR
COURT TRIAL. SEE ARTICLE 1 OF THIS
CONTRACT.
Once signed, the agreement governs all subsequent open-book account transactions for medical services until or unless rescinded by 30 days written notice. The agreement may be signed or rescinded by a legal guardian if the patient is incapacitated or a minor.
The major provisions of MICRA: a limitation on non-economic damages; admissibility at trial of collateral source compensation; provision for periodic payments of future damages; limitations on attorney contingency fees; changes to the statute of limitations; a notice of intent to file a claim requirement; and a provision for compulsory arbitration agreements, have combined to stabilize the costs of professional medical malpractice insurance premiums while providing reasonable compensation to those unintentionally injured by medical practitioners breaching the standard of care.
At present, no other state has been
able to modify their laws to conform to
Arsenio Angus, M.D., Family Practice, 2013 McDaniels St. #140, North Las Vegas, NV 89030
J. Daniel Carpenter, D.O., Ophthalmology, 10001 S. Eastern
Ave. #309,
Michael Ciccolo, M.D., Cardiovascular Surgery, 1090 E. Desert Inn Rd. #202, Las Vegas, NV 89109
Charles Edwards, M.D., Pediatrics, 6301 Mountain
David Fadell, D.O., Orthopaedics,
Omer Farooq, M.D., Internal
Medicine,
Maria Gabriela Gregory, M.D., Neurology, 3131 La Canada #232, Las Vegas, NV 89109
Patrick Knight, M.D., Pathology,
Carlos Letelier, M.D., Oral & Maxillofacial Surgery,
Michael Levin, M.D., M.P.H., Pediatrics, 6301 Mountain Vista #205, Henderson, NV 89014
Henry Luh, D.O., Ob-Gyn,
Luis C. Ortega, M.D., Psychiatry, 3150 N. Tenaya Way #415, Las Vegas, NV 89128
Andrew Oshiro, M.D., Pediatrics,
4570 S. Eastern Ave. #21,
Paul Smith, M.D., Pediatrics, 6301 Mountain
Sheldon Stein, D.O., Osteopathic Medicine,
George Tu, M.D.,
Pulmonary Medicine,
Horace Wu, M.D., Pathology,
Jinny Yoon, M.D., Physical Medicine & Rehabilitation, 2121 E. Flamingo #104, Las Vegas, NV 89119
If you have any pertinent information about the following
candidates, please contact: Clark County
Medical Society,
Robert Baker, M.D. – Cardiology
Richard Chen, M.D. – Cardiology
Aaron Daluiski, M.D. – Orthopaedic Surgery
Cesar Estela, M.D. – Physical Medicine & Rehab
Randall Foster, M.D. – Psychiatry
Li Yee Guo, M.D. Internal – Medicine
Ramy Salah Hanna, M.D. – Orthopaedic Surgery
Wendell Hatch, M.D. – Diagnostic Radiology
Stuart M. Hoffman, M.D. – General Surgery
Craig Iwamoto, M.D. – General Surgery
Nguyet Le-Lindquister, M.D. – Oncology
Arturo E. Marchand, M.D. – Cardiovascular Disease
Robert Morse, D.O. – Cardiology
Gary Podhaisky, M.D. – Pediatrics
Sheldon Schore, D.O. – Family Practice
Angela R. Shoho, M.D. – Internal Medicine
John Simpson, M.D. – Internal Medicine
Keith C. Soderberg, M.D. – Ear, Nose & Throat
Joseph Tangredi, M.D. – Ear, Nose & Throat
Robert Troell, M.D. – Ear, Nose & Throat
|
DISEASE |
CASES REPORTED |
YEAR TO DATE |
|
|
|
|
9/ 2000 |
9/2001 |
2000 |
2001 |
VACCINE PREVENTABLE DISEASES
|
DIPTHERIA |
0 |
0 |
0 |
0 |
|
HAEMOPHILUS INFLUENZA (invasive) |
0 |
0 |
1 |
3 |
|
HEPATITIS A |
5 |
3 |
41 |
43 |
|
HEPATITIS B |
5 |
4 |
29 |
28 |
|
INFLUENZA |
0 |
0 |
15 |
28 |
|
MEASLES |
0 |
0 |
5 |
1 |
|
MUMPS |
0 |
1 |
*4 |
3 |
|
PERTUSSIS |
2 |
0 |
3 |
3 |
|
POLIOMYELITIS |
0 |
0 |
0 |
0 |
|
RUBELLA |
0 |
0 |
0 |
0 |
|
TETANUS |
0 |
0 |
0 |
0 |
SEXUALLY TRANSMITTED DISEASES
|
AIDS |
3 |
17 |
166 |
116 |
|
CHLAMYDIA |
239 |
405 |
1548 |
3023 |
|
GONORRHEA |
116 |
220 |
834 |
1362 |
|
HIV |
14 |
13 |
185 |
91 |
|
SYPHILIS (Early Latent) |
0 |
0 |
6 |
0 |
|
SYPHILIS (Primary & Secondary) |
0 |
1 |
27 |
1 |
ENTERICS
|
AMEBIASIS |
0 |
0 |
1 |
3 |
|
BOTULISM-INTESTINAL |
0 |
0 |
0 |
0 |
|
CAMPYLOBACTERIOSIS |
7 |
12 |
86 |
112 |
|
CHOLERA |
0 |
0 |
0 |
0 |
|
CRYPTOSPORIDIOSIS |
0 |
0 |
3 |
4 |
|
E. COLI O157:H7 |
2 |
1 |
8 |
5 |
|
GIARDIASIS |
11 |
18 |
109 |
95 |
|
ROTAVIRUS |
3 |
22 |
322 |
376 |
|
SALMONELLOSIS |
18 |
17 |
115 |
110 |
|
SHIGELLOSIS |
8 |
14 |
91 |
51 |
|
TYPHOID FEVER |
0 |
0 |
0 |
0 |
|
YERSINIOSIS |
0 |
0 |
3 |
0 |
|
ANTHRAX |
0 |
0 |
0 |
0 |
|
BOTULISM INTOXIFICATION |
0 |
0 |
1 |
0 |
|
BRUCELLOSIS |
0 |
0 |
0 |
0 |
|
COCCIDIOIDOMYCOSIS |
1 |
1 |
18 |
18 |
|
ENCEPHALITIS |
0 |
0 |
1 |
0 |
|
HANTAVIRUS |
0 |
0 |
0 |
0 |
|
HEMOLYTIC UREMIC SYNDROME (HUS) |
0 |
0 |
0 |
0 |
|
HEPATITIS C |
0 |
0 |
0 |
0 |
|
LEGIONELLOSIS |
0 |
0 |
0 |
3 |
|
LEPROSY (HANSEN'S DISEASE) |
0 |
0 |
0 |
1 |
|
LEPTOSPIROSIS |
0 |
0 |
0 |
0 |
|
LISTERIOSIS |
1 |
0 |
3 |
4 |
|
LYME DISEASE |
1 |
1 |
2 |
2 |
|
MALARIA |
0 |
0 |
0 |
1 |
|
MENINGITIS, ASEPTIC/VIRAL |
5 |
12 |
54 |
52 |
|
MENINGITIS, BACTERIAL |
0 |
1 |
19 |
14 |
|
Strep pneumo |
0 |
1 |
17 |
11 |
|
MENINGOCOCCAL DISEASE |
0 |
2 |
2 |
6 |
|
PLAGUE |
0 |
0 |