Medical negligence could happen to anyone. A routine procedure could end in grievous injury and lifetime harm, even death. The stories are horrific, terrifying and tragically real. The wrong kidney removed. Surgical instruments errantly sewn up inside a body left to form infection. Limbs amputated because of infections untreated until too late. A little boy left blind and brain damaged after a wound was improperly treated.
All of these cases are real.
And because of California’s grossly out-of-date Medical Injury Compensation Reform Act (commonly called MICRA), the victims and families of those harmed can only collect up to $250,000 in compensation to offset the human suffering medical negligence can cause through the loss of limbs, eyesight, brain function, the ability to have a family, the freedom to live free of pain, not to mention the impact this has on their families and overall quality of life.
Passed into law in 1975, MICRA has not been adjusted for inflation in almost 38 years. The cost of everything has risen dramatically in the last 38 years – except the value of your life. Patients and victims’ families have come together to demand that the state Legislature and the governor bring this outdated law into the 21st century. We cannot let this law stand as is another year: 38 would be too late.
In the nearly four decades since MICRA won passage in the California Legislature, the prevalence of medical malpractice has skyrocketed to epidemic levels. It causes upward of 200,000 or more deaths a year, which would make it the nation’s third leading cause of death behind heart disease and cancer.
The sort of bad medicine shielded by MICRA doesn’t involve simple human mistakes or bad outcomes that couldn’t be prevented by heroic doctors. These are matters of gross negligence – and often by the same small cadre of practitioners. A recent study of the National Practitioners Data Bank found that fewer than 5% of doctors commit 54% of the malpractice in the U.S. These negligent health care providers have been insulated by MICRA from full accountability.
A stay-at-home mother loses her sight. A janitor who barely makes minimum wage loses a leg. A child is killed. A woman who planned to have children is made infertile. These are all real examples of injuries and death caused by medical malpractice.
And yet, through the carnage, MICRA’s one-size-fits-all cap limiting non-economic damages to $250,000 has remained unchanged while inflation has soared. If MICRA had kept up to rising consumer prices over the years, it’s cap would top more than $1 million today.
Today is the time for change. Now is the time to hold medical professionals accountable by eliminating or updating the cap to fairly compensate victims and their families. Only then would health care negligence be held to account, and only then would its victims begin to approach fair compensation for malpractice that changes lives forever.
Alex Smick had a wonderful life mapped out for himself. At 20, he was studying to be a surgical technician. He was athletic, played a mean guitar, treasured his tight-knit family and had a lifetime of friends growing up in the suburban L.A. community of Downey. He couldn’t wait to graduate and get a job to start saving money for an engagement ring for his longtime girlfriend. As his mom puts it, Alex was “living the American dream.”
But in February 2012, this happy future dove into a bizarre death spiral when Alex sought help for prescription drug dependency. In a twisted mix of tragedy and irony, Smick died of prescription medications given at the hospital where he sought relief.
Losing a son is difficult enough. But when Alex’s parents sought answers and accountability, they felt victimized again by a California law that has frozen the value of a human life taken by grievous health care mistakes at the same level for 38 years.
Alex Smick’s life, his parents learned, was worth just $250,000.
His odyssey began in May 2010 when he was riding a skateboard being towed by the family bulldog, Scar. After a bad tumble, Alex couldn’t get up, his back screaming in pain, and his parents rushed him to the hospital.
When an MRI was finally performed after 10 months of haggling with his health insurance company, it revealed serious damage – a stress fracture to his back and five bulging discs. But doctors held off surgery. Alex was too young, they said, let’s try therapy instead. And they prescribed more pain meds. Ultimately, nearly two years into his ordeal, Alex could take no more, and pushed for surgery. But his pain management doctor had one final prescription – morphine tablets.
Alex took one and felt relief. He was overjoyed, so he took another. More relief. And another. By the third, he began to lose track of how many pills he had taken. He grew worried and drove himself to the nearest hospital.
When he arrived, ER staff assumed he was a suicide case trying to overdose. They called in a mental health evaluator, who quickly concluded that Alex was a danger to himself.
It was like a nightmare, his mom recalls. Authorities carted the young man off to a mental health hospital ward in Long Beach awash with a sea of psychotic people. They kept him there nearly a week. In yet another in a series of tragic mistakes, health workers mixed up his chart with that of a woman in the ward suffering from post-partum depression.
Doctors told Alex they believed he had a problem with his pain meds. He needed to break his dependency on the drugs, they said, recommending he enter a hospital in Laguna Beach.They would treat his back with acupuncture and wean him off the pain killers.
Within two hours of arriving, Alex was back on a new regimen of medications.
By the next morning, he was dead.
His distraught parents and extended family struggled with a mix of grief and disbelief. How could this happen?
Answers were slow to come. Ultimately, a toxicology report determined the cause: Alex had died of a poisonous mix of prescription drugs administered in a hospital he entered to get off such medications.
Then, when his family sought accountability and justice, they discovered their quest would be hamstrung by a California law that – unadjusted for inflation in the 38 years since its passage – put the value of Alex’s life at just $250,000. That law is an outdated, one-size-fits-all measure known as MICRA – the Medical Injury Compensation Reform Act of 1975.
“Our son’s life isn’t worth $250,000 to us,” his mother says today. “Alex was priceless.”
The death of a six-week-old child from an illness that could have been easily diagnosed and successfully treated is tragic enough. For the life of that child to be valued at no more than $250,000 is unforgivable.
Six-week-old Alexandra Mia Chavez, the third child of Alejandra Gonzalez and Mario Chavez, began coughing and wheezing one warm day in July 2010. Her mother shuttled little Mia to the clinic near their home in the Los Angeles County community of La Puente but was told to keep an eye on the girl’s condition and sent home. When the newborn failed to improve over the course of the next three days, her mom took the girl to an emergency room. An X-Ray was shot, and the mom was assured her tiny, swaddled infant did not have pneumonia.
The next day, Mia’s regular doctor treated her with a nebulizer. A day later he prescribed an antibiotic and Tylenol. When her mom called the following day to report no improvement, the physician seemed unconcerned that something more might be amiss. Finally, still spiraling downhill a week after her illness first surfaced, Mia was taken to the emergency room.
And the next day she died.
The tiny infant was ultimately diagnosed with pertussis, or whooping cough, a highly contagious disease known to be potentially fatal in infants. Her doctor later admitted he was aware that California, and Los Angeles County in particular, was in the midst of a pertussis epidemic, although he had not seen a case himself. Warnings had been issued to the medical community before Alexandra became ill. Be on guard, they warned, because the initial symptoms of pertussis in infant can resemble those of a common cold – right along the lines of what Alexandra showed when she first went in for care. Infants under three months old, like Alexandra, were most at risk.
Her doctor could have run a blood test or done a nasal swab that could have established the presence of pertussis. He did not. The standard treatment would almost certainly have prevented Mia’s death. But the physician never ordered any lab work or cultures. And the antibiotic he prescribed may have reduced the infant’s ability to fight her infection.
The normal standard of care would have required Mia’s doctor to refer her to a hospital given her continuing cough and lack of nutrition resulting in weight loss. He did not.
Mia’s mom knew it was not normal for a child to be as ill as her baby became in the week leading up to her death. She did everything she could to help little Mia, taking her to medical facilities five times in eight days once her daughter showed symptoms, as well as calling on another occasion.
Under California’s 38-year-old MICRA damage cap, Alexandra Mia Chavez’s life – with all the potential it held, all the joy she brought to her parents and all the agony they went through as the result of her death – was worth no more than $250,000.
He used to be a robust fellow, the kind of guy who liked to go off road in a Jeep or deep-sea fish with buddies, mixing the adventure with life as a doting family man. Alan Cronin juggled his responsibilities with aplomb.
Now he makes his way through life in a wheelchair, his arms and legs reduced by amputation to stumps. He lives in constant phantom pain. It’s all the result of medical negligence after a simple hernia operation.
How much is an arm worth? Or both arms and both legs? How much is the loss of that quality of life worth?
In California, it’s $250,000.
Cronin never remotely saw this coming. It’s been more than a decade and he still has trouble getting his mind around it. Doctors assured him it was a routine operation to fix a hernia. It was outpatient surgery. He went in and was back home the same day.
But about a week later, Cronin grew ill. He had flu-like symptoms, a fever. He was weak and dizzy. The surgical site felt oddly hard to him, like some strange pressure inside was trying to burst outward.
His wife came home from work, took one look and rushed Cronin to the hospital. He remembers looking up at the patient monitor in the ER, watching his vital signs dropped. Then he passed out.
He became septic and suffered toxic shock. Once doctors finally opened the surgery site, the puss and sepsis were so overwhelming that they told Alan’s family that he had a 95% chance of dying.
Cronin awakened more than five weeks later to a real-life horror story. All four of his limbs were gone, amputated to keep the gangrene from spreading further and killing him.
Grappling with emotions, Cronin slowly learned what had happened. After the surgery, a staph infection had set in and rippled through his body. By the time doctors finally determined the cause of the infection, it was too late. Gangrene had spread into his limbs.
Cronin and his family wanted to hold the health care system accountable for the medical negligence that had cost him so dearly. That’s when they found out about MICRA, the Medical Injury Compensation Reform Act of 1975 that caps damages for human suffering at $250,000.
In one sense, Cronin was lucky. He was able to utilize workman’s compensation to offset the staggering costs of his medical care, let alone the economic blow to his family to lose his breadwinner’s salary. He also had a private disability policy that was used as an offset against future economic damages.
But what about his suffering, what would compensate that? To this day, Cronin has pain every waking moment, like an ice pick jabbing where his hands and feet used to be. Under MICRA, Cronin could expect no more than $250,000.
The value of everything has ballooned since 1975 – except the value of a human life.
“What dollar amount do you put on someone’s life or someone’s limb?” Cronin wonders today. “I don’t know. But to me $250,000 doesn’t sound like a fair number.”
It could have been a Norman Rockwell scene. Troy and Alana Pack, ages 10 and 7, were walking with their mom and two other neighborhood kids the half mile to a Baskin Robbins ice cream store near their home in the comfortable Northern California community of Danville. It was a warm Indian summer night in October 2003. The kids had been out playing all afternoon. They had enjoyed a family barbecue and looked forward to their favorite after-dinner treat.
That calm picture along a leafy parkway was shattered when a late-model Mercedes came screaming toward them.
The car squealed across three lanes of traffic, jumped the curb and roared along the sidewalk with no sign of stopping. Troy and Alana were hit head-on, their tiny bodies catapulted into the fading sunlight. Their mom, Carmen, five months pregnant with twins, pushed Alana’s friend out of the way, then was herself smacked by the car. A friend of Troy’s escaped serious injury by diving out of the way.
By the time Bob Pack rushed to the scene after a neighbor called with the awful news, it was too late for both his children. His wife lay gravely injured. She would survive, but lost the twins. The driver of the car fled.
Pack, a man of calm fortitude who had helped co-found the internet firm NetZero, grappled with his grief by launching a search for answers.
The task of securing criminal accountability proved relatively swift. Police and the FBI within days caught up to the driver, a Columbian immigrant and neighborhood nanny named Jimena Barreto, as she attempted to flee the country. A judge sentenced her to 30 years in prison.
Equally vexing to Pack was the matter of the health care system’s role in the accident. Through the police investigation, he came to find out that Barreto was stoned on prescription drugs chased by vodka. She told investigators she had fallen asleep at the wheel.
Police determined that she had been working the health care system for several years, scoring thousands of pills, all through Kaiser doctors. In the two weeks before the accident, she had “doctor shopped” half a dozen Kaiser physicians in the area to score 340 pain killers and half again as many muscle relaxers. She took them all before the accident.
Pack knew the brunt of the blame rested squarely on Barreto, but he also felt that Kaiser bore a measure of culpability for failing to maintain any sort of safeguard to prevent the sort of abuse that had, like a cascading row of dominos, led to the deaths of his children. How in the age of the Internet, an era Pack and so many others had mastered, could the big HMO let such abuse occur without warning?
He would launch what for the past decade has been a quest to ensure that California put safeguards in place, a quest that continues to this day. Pack also would run headlong into the limits of California law presented by MICRA, the Medical Injury Compensation Reform Act of 1975 that caps damages for non-economic suffering to $250,000.
Pack wanted to hold Kaiser accountable, to use the sting of the civil courts to prod the HMO giant to make changes that would protect other innocent victims that could fall afoul of doctor shoppers as his children had.
But in the end, he would secure no such victory. Because of MICRA, the lives of Troy and Alana Pack – the birthdays never to be celebrated, the first car and college and adulthood never to be experienced – were worth just $250,000.