San Fernando Valley Los Angeles Attorneys
Navigation Two
Phone Number
Monday
Oct202014

Doctors, Lawyers and the Controversial Prop 46

Litigation Los AngelesBusiness & Environmental Transactions & Litigation  

Stephen T. Holzer

818.907.3299

 

What's the most controversial measure on California's November ballot? The insurance regulation bill, Prop 45, may be a good contender – but more than likely the controversy over Proposition 46 will win the contest hands down. But can it win votes as well?

Before we can guess, let's look at all that Prop 46 strives to accomplish: 

  1. Raise California's cap on damages for medical malpractice (MedMal) suits to $1 million – currently the cap is $250 thousand.

  2. Requires doctors to undergo drug and alcohol testing. Positive test results will be reported to the California Medical Board (Board).

  3. Requires the Board to suspend doctors who test positive for drugs or alcohol pending an investigation. The Board will be required to discipline those doctors found to be working while under the influence.

  4. Health care practitioners will be required to report doctors they suspect of being on duty while impaired, or who otherwise perform duties negligently.

  5. Requires medical practitioners to consult a state prescription database before prescribing some controlled substances. 

­­Prop 46 Background

When Jerry Brown served as governor of California the first time, he signed the Medical Injury Compensation Reform Act (MICRA), in 1975. The act capped noneconomic pain and suffering damages for MedMal suits at $250 thousand. If we adjust the cap for inflation since 1975, the figure should roughly total $1.1 million this year.

Arguments For and Against Prop 46

Here are the groups opposing and supporting the measure, and some of their primary reasons for the stances they've taken.

The Prop 46 opposition gets full backing from numerous health professional organizations, including the: California Medical Association, California Dental Association and American Medical Association. Then add strong union backing from the International Brotherhood of Electrical Workers (IBEW) and Service Employees International Union (SEIU).

Finally, count the political heavies like the California Republican Party, the American Civil Liberties Union of California, the California NAACP – and you find some intimidating opposition to Prop 46.

The arguments against the ballot measure are as varied as the goals Prop 46 tries to achieve. Opponents say: 

  1. Bigger awards for malpractice suits means the doctors and insurance companies will defer those costs to the consumer – potentially hundreds of millions each year.

  2. A prescription database threatens consumer privacy. The government can't implement or maintain it, let alone protect it from hackers.

  3. You could lose your doctor – if the medical liability cap increases, your doctor may be forced to leave California to practice elsewhere, or reduce/eliminate services. 

Prop 46 supporters include: Consumer Watchdog, consumer advocate Erin Brokovich; the founder of Mothers Against Drunk Driving Candace Lightner; Senator Barbara Boxer, House Democratic Leader Nancy Pelosi, the State Insurance Commissioner Dave Jones, various democratic party leaders and patient safety advocates. Those behind the measure say: 

  1. Indexing the damages cap for inflation won't raise health care costs, as those awards account for a very small percentage of the costs of healthcare. Additionally, insurance companies earned a 6.5 percent return on net worth in the last decade, while MedMal insurers earned a 16.7 percent return.

  2. Medical negligence is the third leading cause of death after heart disease and cancer, and about 18 percent of doctors suffer from drug and/or alcohol abuse at some time in their careers.  

  3. A prescription drug database is already in place, the Controlled Substance Utilization Review and Evaluation System, or CURES was established in 1997, and went digital five years ago. Additionally, 48 other states across the nation already have a prescription drug monitoring program in use. 

A Field Poll initiated in June reported 58 percent of respondents supported Prop 46, but in August poll numbers dropped to 34 percent. Whether you agree or disagree with the intended goals or this ballot measure, the controversy will keep the campaign interesting. 

Stephen T. Holzer is an Environmental and Business Litigation Attorney. Contact him via email: sholzer@lewitthackman.com , or by phone: 818.907.3299

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Tuesday
Oct142014

Assembly Bill 802 Makes Arbitration Less Confidential

Business LitigationBusiness and Employment Litigation Attorney

by Hannah Sweiss

818.907.3260

 

On September 30, 2014, Governor Jerry Brown signed Assembly Bill 802 (AB 802) into law, amending Section 1281.96 of the Code of Civil Procedure, relating to consumer arbitration.

Effective January 1, 2015, AB 802 requires large-scale arbitration providers such as JAMS and AAA to collect and publish certain details about consumer arbitration proceedings that were previously confidential. Arbitration providers must publish the required information in a consumer-friendly format, accessible from a conspicuous link on the arbitration providers’ website. 

What information will arbitration providers have to publish under AB 802? 

  • Arbitration Clause: Was the arbitration mandated because of a pre-dispute contractual clause?

  • Arbitration Provider: Did the arbitration contract designate a particular arbitration provider? If so, the name of that provider.

  • Non-Consumer Party Identification: If a non-consumer party (i.e., employers) is involved, the arbitration provider must disclose the name, type of business entity and if the entity initiating or responding party?

  • Nature of the Dispute: Does the dispute involve goods, services, health care, employment or some other issue? If there is an employment dispute, the employee's salary range should be disclosed unless the employee wishes to not disclose his/her salary.

  • Prevailing Party: Who was the prevailing party (i.e., the party with a net monetary recovery or the party awarded injunctive relief)?

  • Number of Arbitrations and Mediations: How many times the company has been involved in an arbitration or mediation using this particular arbitration service.

  • Consumer's Attorney: Was the consumer represented by counsel? If so, the full name and firm of the attorney who represented the consumer or claimant.

  • Arbitration Timeline: What date was the arbitration demand received by the arbitration provider? When did the arbitration actually occur? What date was the award issued?

  • Disposition of the Case: Did the arbitration end with a withdrawal, abandonment, settlement, award, default or dismissal?

  • Claim Amount, Attorneys’ Fees, Etc.: What was the claim amount? Award? Attorneys’ fees? Was equitable relief requested and awarded?

  • Arbitrator Info: Who was the arbitrator? What was the amount of the arbitration fee? Who paid the fee? Was a waiver for payment granted?

Prior to AB 802, one of the significant benefits to arbitration was the confidentiality and privacy of arbitration proceedings. The new disclosure requirements chip away at these protections and potentially expose businesses to more frivolous claims.

Now consumers (more likely consumer attorneys) can easily assess which entities/employers are arbitrating more often than others and the results of those arbitrations. The new law practically offers up a guidebook for serial complainants to bring claims against businesses who have a public history (in a private forum) of paying out awards to claimants.

This disclosure requirement may also add a layer of time and cost to the arbitration process. Now arbitration providers have to spend time and money collecting, assembling and disseminating information that may not have otherwise been readily available. This could potentially translate into higher arbitration fees and more time spent involved in the overall arbitration process.

Despite the new disclosure requirements under AB 802, arbitration still has benefits for certain employers. Employers can potentially limit employee class actions for wage-and-hour, employment discrimination, and other labor and employment claims. Arbitration may offer a more streamlined process to resolve employment claims. And there is limited discovery, which may help reduce time spent on discovery.             

Although there are benefits, arbitration has disadvantages, particularly for employers. Arbitration is often more costly. Arbitration fees are usually more expensive than court filing fees and employers are required to pay the arbitrator’s fees. The outcome in arbitration may also be riskier than state or federal court litigation because there are fewer checks on the arbitrator’s discretion and no meaningful appellate procedure.

Therefore, arbitration may not always be the best option for employers. It is important for employers to discuss with legal counsel before requiring employees to sign arbitration agreements.

Hannah Sweiss is a Business & Employment Litigation Attorney. Contact her via email: hsweiss@lewitthackman.com, or by phone: 818.907.3260 for more information.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Monday
Oct132014

California's Prop 45: Sticking it to "the Man" or to the People?

Litigation Los AngelesBusiness & Environmental Litigation  

 

Stephen T. Holzer

818.907.3299

 

 

 

Continuing our series covering the various measures Californians will see on the 2014 midterm election ballot, we now turn to Proposition 45, or the Public Notice Required for Insurance Company Rates Initiative.

 

The crux of the question is this: Should insurance company rate changes for small businesses and individuals be regulated? Here's how regulation would be enforced if Prop 45 passes. The measure will require:

  1. The California Insurance Commissioner to approve rate changes or any other changes that affect charges to policy holders.

  2. Public notices, hearings and judicial reviews regarding rate changes.

  3. Health insurers to submit sworn statements attesting to the accuracy of information they submit to the Insurance Commissioner regarding the need for rate changes.

  4. Exemptions of large group employer health plans

  5. Auto, health and homeowners insurance companies to cease denying policies or raising rates for consumers based on credit history and lack of prior coverage.

Though the question is simple, it appears the answer may be more complicated. The battle lines are drawn almost exactly as you would expect, though there are some surprises on each side.

Supporters of Prop 45 include a variety of consumer watchdog groups; labor unions such as the California Nurses Association and the California Federation of Teachers; the California Democratic Party; and the current Insurance Commissioner, Dave Jones.

These groups argue that the cost of health insurance is running out of control, with no transparency regarding how insurers set their prices. Supporters of the measure claim health insurance premiums have risen 185 percent since 2002, and that one company in particular raised rates nearly 20 percent this year alone.

Opponents of Prop 45 encompass the California Medical Association; various hospital groups; labor unions such as the International Brotherhood of Electrical Workers; the California Chamber of Commerce and the William Jefferson Clinton Democrats.

Those against the measure say Prop 45 giving one politician – the Insurance Commissioner – so much power is a bad idea, and that treatment decisions should be made by doctors and patients, not someone who takes campaign contributions. They also argue against creating more costly bureaucracy, and that this proposition is sponsored by special interest lawyers looking to profit from health care lawsuits.

The latest Field Poll estimates 48 percent of those surveyed support Prop 45, over 38 percent oppose, and about 14 percent are still undecided.

Stephen T. Holzer is a Business and Environmental Litigation Attorney. Contact him via phone: 818.907.3299 or by email: sholzer@lewitthackman.com.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Wednesday
Oct082014

No Tricks: Halloween Safety Tips for All

Personal InjuryAccident Attorney

 

 

by Andrew L. Shapiro

(818) 907-3230

 

Halloween isn't usually our most dangerous holiday when it comes to safety on the roads. That infamy is generally attached to the "drinking" festivals like Thanksgiving, Memorial Day or the Fourth of July, according to the National Safety Council.

But this year, Halloween happens to fall on a Friday, which means many revelers won't have to get up early to get to work the following morning. Halloween parties are a lot more tempting when held on Fridays or Saturdays, than say, Tuesday.

Combine that factor along with the number of trick-or-treaters out on the road that evening plus the number of distracted drivers navigating pedestrian-crowded neighborhoods, and All Hallows Eve starts to look just a little scarier this year. With that in mind, we thought we'd share some Halloween safety tips, in the hopes of keeping you and yours celebrating in good health.

Pedestrian Safety:

  1. Add reflective tape to costumes and treat bags, particularly if the costume is dark-colored. Drivers will see you better if you're not blending into the shadows.

  2. Use a flashlight, or carry glow sticks.

  3. If wearing a mask, make sure it fits well. You want good peripheral vision to avoid stepping on your fellow ghouls and goblins and crossing the street. (Don't wear your mask while driving. You want good peripheral vision when behind the wheel too.)

  4. Keep clear of candles, especially if wearing flowing robes or other costumes that billow and trail.

  5. Remember the basics: Use sidewalks and crosswalks whenever possible, and look both ways before crossing.

Other Halloween Safety Reminders:

  1. Make sure costume accessories are soft and short. You don't want to trip others with swords and light sabers, or poke someone in the eye with Neptune's trident.

  2. Trick-or-treating is a "buddy" activity. Don't go alone, or let your kids go alone.

  3. Examine the goodies for tampering before consumption. Make sure you keep smaller children away from treats that may cause choking.

  4. Decorative contact lenses may cause eye injuries. If you must have cat eyes for the evening, at least spring for an optometrist's exam so you can get properly fitting lenses.

  5. Halloween makeup and accessories like fangs should be tested well in advance. Allergic reactions and mouth abrasions can really make mayhem of your holiday.

Remember, common sense is key. You've heard all or most of the above recommendations before, but sometimes in the spirit of the season, we tend to forget. Here's hoping you remember – and that you also have a safe, and Happy Halloween.

Andrew L. Shapiro is the Chair of our Personal Injury Practice Group. Contact him via email: ashapiro@lewitthackman.com or by phone: (818) 907-3230.

Friday
Oct032014

Cutting the BS(A): California's Prop 2 Re the Budget Stabilization Account

Litigation Los AngelesEnvironmental Litigation  

Stephen T. Holzer
818.907.3299

 

In our second blog examining the propositions we'll be seeing on the election ballot November 4th, we'll take a look at California's Proposition 2, or the Rainy Day Budget Stabilization Fund Act (formerly known as Proposition 44).

If you haven't guessed already, this prop is about the state's money, and the serious lack thereof.

Back in 2004, Californians voted to establish a Budget Stabilization Account (BSA), in which the government was expected to allot three percent of revenues from the general fund. The BSA was supposed to be a savings account for those years in which California experienced budget shortfalls. In retrospect, given the consistent downward spiral into debt, the BSA proved to be a tad optimistic.

California's Proposition 2 may be an acknowledgement of reality.  Among other things, the primary goals of this measure are to: 

  1. California Rainy Day FundCut the 2004 BSA deposit requirement in half. The state will be required to put 1.5 percent of revenues into the fund;

  2. Increase the funding with capital gains taxes if tax revenues exceed eight percent of general fund revenues;

  3. Require annual deposits to the BSA to begin no later than October 1, 2015; and to continue annually until the total BSA equals 10 percent of general fund revenues;

  4. Starting next fiscal year and ending fiscal year 2029-30, 1.5 percent of state revenues  must be used to pay for other obligations such as budgetary loans and unfunded state-level pension plans. (Essentially, of the three percent initially allotted to the BSA in 2004, half continues to be deposited into the BSA while the other 1.5 percent is allotted to other state debts.)

  5. Require the governor to declare a fiscal emergency before allowing the state to suspend or reduce annual BSA deposits

  6. Establish the Public School System Stabilization Account (PSSSA) – funding would come from capital gains tax revenues if they exceed eight percent of general fund revenues. The PSSSA is meant to fund K-14 education needs when the state runs out of educational funding from other revenue sources.

There seems to be wide support for Prop 2, and it transcends the usual party lines. Groups for include Governor Jerry Brown (who signed the bill August 11th), the California Chamber of Commerce and both the state's Democratic and Republican Parties.

Opposition to Proposition 2 seems to be spearheaded primarily by educational groups. Members of the opposition argue that it limits local school districts to saving their own funding down to a few weeks of district expenses. Additionally, the state regularly skims $5B or more annually from school-allocated property taxes, which California officials have yet to pay back. In fact, $10B in deferred payments from the state have forced school districts to cut programs and dip into their local financial reserves.

President of the California State Board of Education, Dr. Michael Kirst, rebuts with the argument that stabilizing the state economy is the best way to protect schools from further drains on the education budget.

The heart of the matter is this: It seems almost everyone wants a bigger Rainy Day Fund for California – the question is whether or not the cost for this will be borne by our schools.

 

Stephen T. Holzer is an Environmental and Business Litigation Attorney. Contact him via email: sholzer@lewitthackman.com, or by phone: 818.907.3224. 

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

LEWITT HACKMAN | 16633 Ventura Boulevard, Eleventh Floor, Encino, California 91436-1865 | 818.990.2120