Q1 2020 | Los Angeles Medicine Magazine

OFFICIAL PUBLICATION OF THE LOS ANGELES COUNTY MEDICAL ASSOCIATION

THE NEW THREAT TO MICRA: A WOLF IN SHEEP’S CLOTHING A massive response from organized medicine and its allies can save a pillar of California healthcare from a veiled attack.

QUARTER 1 2020

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PUBLISHER Gustavo Friederichsen | gustavo@lacmanet.org EDITOR Sheri Carr | editor@physiciansnewsnetwork.com ADVERTISING SALES Dari Pebdani 858.231.1231 | dpebdani@gmail.com

VOLUME 151 ISSUE 1 | QUARTER 1 2020

EDITORIAL ADVISORY BOARD David H. Aizuss, MD Troy Elander, MD Thomas Horowitz, DO Robert J. Rogers, MD HEADQUARTERS LOS ANGELES COUNTY MEDICAL ASSOCIATION 1055 West 7th Street, Suite 2290 | Los Angeles, CA 90017 Tel 213.683.9900 | Fax 213.226.0350 www.losangelesmedicine.org LACMA OFFICERS PRESIDENT | Sion Roy, MD PRESIDENT-ELECT | Diana Shiba, MD TREASURER | Jeffery Lee, MD SECRETARY | Omer Deen, MD IMMEDIATE PAST-PRESIDENT | C. Freeman, MD, MBA, FAPA LACMA BOARD OF DIRECTORS COUNCILORS-AT-LARGE TRUSTEES & CHAIR DELEGATION Jerry Abraham, MD (1) Jack Chou, MD, CMA Trustee Samuel Fink, MD (6) Po-Yin Samuel Huang, MD, Chair of the LACMA Delegation Sunny Jha, MD (1) Sion Roy, MD, CMA Trustee Karen Sibert, MD (5) Valencia Walker, MD (5)

2 4 6

COUNCILORS Robert Bitonte, MD, JD (D1) Emil Avanes, MD (D2) Stephanie Booth, MD (D3) Troy Elander, MD (D5) Marc Mendes, MD (D6) David Hopp, MD (D7) Steven Sawelson, MD (D9) Christine Phan, MD (D10) William Hale, MD (D14) Nancy Ellerbroek, MD (D17) Lisa Firestone, MD (SCPMG) Roxana Yoonessi, MD, JD (SCPMG) Heather Silverman, MD (SSGPF) Muntu Davis, MD (LA County) Po-Yin Samuel Huang, MD (1, YP Councilor) Hector Flores, MD (1, EPC Chair) Anna Yap, MD (Resident Councilor) Cecilia Leggett, MD (Alt. Resident Councilor) Ali Tafreshi (Student Councilor, USC) Stacy Songco (Alt. Medical Student Councilor, UCLA)

PRESIDENT’S LETTER

Sion Roy, MD

A MESSAGE FROM LACMA CEO

Gustavo Friederichsen

THE NEW THREAT TO MICRA: A WOLF IN SHEEP’S CLOTHING

LACMA’s Board of Directors consists of a group of 31 dedicated physicians working hard to uphold your rights and the rights of your patients. They always welcome hearing your comments and concerns. You can contact them by emailing or calling Lisa Le, VP of Operations and Strategic Initiatives, at lisa@lacmanet.org or 213-226-0304.

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LACMA PRESIDENT

S I O N R O Y, M D

A Very Active Start to the New Decade for LACMA Physicians Coronavirus | First and foremost, we have been dealing with the emerging coronavirus pandemic.

At LACMA, we have been working with the Los Angeles Department of Public Health and other healthcare agencies to develop strategies to limit the spread and deleterious effects of the virus.

We have also been making efforts to disseminate meaningful information to help our county’s physicians confront this issue. A state of emergency has been declared in LA County, and LACMA will continue to do everything we can to minimize the effects of this outbreak in our county.

...unfortunately we have been confronted with the news that there will likely be a ballot initiative that threatens [MICRA] this November.

Anti-MICRA Ballot Initiative | 2020 is an election year as well, and unfortunately we have been confronted with the news that there will likely be a ballot initiative that threatens California’s Medical Injury Compensation Reform Act (MICRA) this November.

This ballot initiative would essentially eliminate MICRA if it passes, spelling disaster for our county’s patients, as it would significantly increase healthcare costs and threaten access to care for our most vulnerable populations.

LACMA, CMA and other leading physician organizations will be leading the charge to fight this threat organized by a wealthy, out-of-state trial attorney.

Just as in 2014, we must organize together, and we will be asking our members to help raise money to fight the initiative, as well as to help educate fellow physicians and the public at large about the importance of MICRA in decreasing healthcare costs and maximizing access to care for all our patients.

This initiative would lead to a healthcare-access crisis in the state, and LACMA is committed to stopping that from happening.

Docs4LA | Amid all this, we continue to focus on the Docs4LA initiative. This initiative has opened doors to new community partnerships that will make lasting impacts on our county’s residents. We are partnering with organizations like Meals on Wheels, Santa Monica College, Community Corporation, and the Department of Public Health in innovative ways to tackle issues like food and housing insecurity, as well as the vaping epidemic.

Honoring Good Work | Finally, we continue to honor organizations and leaders that make a difference in our community on a daily basis. At our annual healthcare awards gala in November, we honored organizations like the Los Angeles Rams and Venice Family Clinic for their work in the community. And recently at our quarterly board meeting, we honored former California Senate Majority Leader Kevin de Leon for his leadership on the issue of housing and homelessness.

It is an honor to lead the more than 7,000 physician members of LACMA as we continue to look for ways to make a positive difference in the lives of all Angelenos.

Thank you for all that you do!

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LACMA CEO

G U S TAV O F R I E D E R I C H S E N

Celebrating Women’s History Month It’s been a privilege to offer perspective the past four years via Los Angeles Medicine Magazine.

I usually pick a topic that is universally relevant.

This past month is no different. March is Women’s History month, and I wanted to take a moment to first and foremost honor the woman who helped shape the person I am today. I know it sounds cliché. My mother came to this country originally from Mexico. She began working for the Grossmont Union High School District near San Diego in the early 1970s.

She worked hard for several decades so I could attend college and have a better life.

She was of a generation that believed in always working, never asking or expecting any help from anyone.

That profound inspiration is why, as we celebrate this special month, I would like to honor women, particularly those in medicine, who have helped change the profession forever, and for the better.

Rose Talbot Bullard (April 16, 1864 – December 22, 1915) was an American physician and medical school professor who was elected president of LACMA in 1903. Dr. Bullard’s father was a physician. She earned her medical degree at the Women’s Hospital Medical College in Chicago, where she graduated at the top of her class in 1886. Her sister Lula Talbot Ellis was also a physician, and the first woman to graduate from the medical school at the University of Southern California in 1888. It would be nearly a century before another female was elected to serve as LACMA president.

Dr. Bullard would be proud of the progress we have made. C. Freeman, MD, MBA, FAPA, a geriatric psychiatrist and female, became LACMA’s first African American president in 2018. Diana Shiba, MD, is to be installed as the first Asian American female president later this year. An ophthalmologist by training, Dr. Shiba is Chief Government Relations Officer and Regional

The fact is every day we should honor the incredible contributions made by women in medicine.

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Assistant Medical Director at Southern California Permanente Medical Group. Dr. Shiba brings to LACMA decades of organized medicine leadership experience that began in residency. Dr. Shiba has served as LACMA secretary, treasurer and president-elect and currently serves on the California Medical Association Board of Trustees.

Thanks to the tireless work of Chair Stephanie Booth, MD, and fellow female physician leaders, the Women Physicians Issues and Advocacy Committee (WPIAC) was formed and honors women physicians in Los Angeles County who have distinguished themselves in service to their patients and their profession.

Last year’s keynote speaker at the WPIAC’s Celebration of Women in Medicine luncheon was LACMA executive committee and board member Valencia Walker, MD, MPH, a neonatologist, who is Assistant Dean of Equity and Diversity Inclusion at the David Geffen School of Medicine at UCLA. Other honorees included Anna Yap, MD, a resident in emergency medicine at Olive View – UCLA Medical Center; Elaine Batchlor, MD, MPH, an internist who is the founding chief executive officer of Martin Luther King, Jr. Community Hospital, which opened in 2015; Christina Ghaly, MD, an internist, who was appointed by the Los Angeles County Board of Supervisors as the Director of the Department of Health Services (DHS) in 2018.

The fact is every day we should honor the incredible contributions made by women in medicine. As we enter perhaps the most historic chapter in LACMA’s history with membership over 7,000 and record membership retention rates (94%), we still have a tremendous amount of work ahead of us that includes supporting women in private practice, those in group and health system settings and those who aspire to leadership roles, and honoring female medical students (like at last year’s Patient Care Foundation Gala) through scholarships. With a new MICRA fight underway (covered in this issue), it will take the knowledge, tenacity and wherewithal from our female members to defeat the threat. Let’s continue to honor women in medicine each and every day!

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THE NEW THREAT TO MICRA: A WOLF IN SHEEP’S CLOTHING A massive response from organized medicine and its allies can save a pillar of California healthcare from a veiled attack.

A ballot initiative shaping up for November 2020 would effectively eliminate limits on non-economic damage awards in medical malpractice cases. Propelled by wealthy Iowa trial lawyer Nick Rowley, the measure would also inflate attorneys’ fees while making other harmful changes to how these cases are tried.

But on the surface, the misleading “Fairness for Injured Patients Act” appears aimed to simply “update” the cap on non-economic damages established by the landmark Medical Injury Compensation Reform Act of 1975. The ballot initiative’s success would be a windfall for trial attorneys, not mistreated patients.

Your California Medical Association and Los Angeles County Medical Association are careful to point out that this measure isn’t the same as the last such threat, 2014’s Proposition 46. As Los Angeles County Medical Association Past-President Dr. C. Freeman says, “What this one does is a host of different things beyond the cap on noneconomic damages, which makes it such very bad news indeed for the healthcare system in general.”

According to your California Medical Association, the ballot initiative’s success would: • Inflate costs for patients and taxpayers • Jeopardize access to quality healthcare for the state’s most vulnerable populations • Raise physicians’ insurance costs, causing rural practices and high-risk specialties to reduce or eliminate patient services • Encourage more medical malpractice lawsuits, diverting additional patient-care resources to the legal system

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What You Can Do To get the new measure onto the November 2020 ballot, its proponents must collect 623,212 valid signatures that must be verified no later than June 25. And so far, it appears that they may be on track to meet those numbers.

It’s the biggest threat to MICRA yet, so your CMA and LACMA are gearing up for a major fight. If California’s broader healthcare community and the public get on board, we can deliver a major victory rivaling MICRA’s introduction in 1975.

What’s the Racket?

Introduced in September of last year by out-of-state trial lawyer Nick Rowley, the ballot initiative would make major changes to MICRA’s cap on non-economic damages, and it would alter the process to help line pockets just like his.

“It’s understandable that patients who experience some injury receive compensation,” says Dr. Freeman. “But the way this initiative is designed, the majority of compensation appears to go to the lawyers, not the patient.”

This deceptive measure subverts the cap by creating a new category of damage awards in cases of “catastrophic injury.” This measure then defines “catastrophic injury” as anything that leaves lasting damage, whether that be a tiny scar or something more substantive. As a result, the definition of “catastrophic” is extremely broad and could be applied in virtually every case.

And as a coup de grâce, the measure would allow physicians to be held personally liable. That is, a physician’s personal assets would be fair game when it comes to awarding damages to an injured patient.

At the same time, Rowley’s ballot initiative would severely tilt the playing field in his own favor by: • Eliminating caps on attorneys’ fees for both economic and non-economic damages • Preventing judges from dismissing frivolous lawsuits by creating

INFORM YOURSELF, INFORM OTHERS | Get familiar with the details surrounding this historic law, the new push to disable it, and the implications of its defeat. Then share what you know with colleagues, coworkers, patients and the public.

Visit the CMA MICRA resource page: www.cmadocs.org/micra Get involved as a CMA Physician Advocate, Social Media Ambassador, Media Surrogate, and more: www.cmadocs.org/media-surrogate Learn more from Californians Allied for Patient Protection: micra.org

RAISE FUNDS TO FUEL THE FIGHT | “The ballot initiative has a very wealthy backer — we don’t have that benefit,” says LACMA President Dr. Sion Roy. “So we’re asking individual physicians, medical staffs and practices to pitch in to help raise the tens of millions of dollars needed to educate voters in this campaign.”

$ Join Californians Allied for Patient Protection: micra.org

ENCOURAGE YOUR PEERS TO JOIN ORGANIZED MEDICINE | Your CMA and LACMA have fought MICRA battles before. We have the expertise, the experience, the contacts and the infrastructure, but we’re up against a serious foe. Physicians are stronger together.

Send new LACMA members here: ladocs.org/join

Send new CMA members here: www.cmadocs.org/join

SPEAK WITH YOUR LOCAL AND STATE REPRESENTATIVES | Members of the state Assembly and Senate have powerful public platforms, but so do government representatives at the local level.

It’s most effective to establish a rapport with them around this issue, rather than calling only at key moments.

Contact state legislators: www.legislature.ca.gov/your_legislator.html Contact Los Angeles officials: www.lacity.org/government/city-directory

Q UA RT ER 1 2020 | L A D O C S .O RG 7

“certificates of merit,” a new mechanism for introducing trial attorney statements that are not subject to independent verification by judges

“‘Catastrophic injury’ could be something as simple as a scar.”

• Increasing the risk that patients will run out of money before recovery is complete by requiring damages to be paid in a single, lump sum — which allows trial attorneys to collect more in fees • Doubling or tripling trial attorneys’ fees, in many cases, by raising that cap to 50% of jury awards in malpractice cases — to be paid from those same jury awards As a result, the measure would obliterate existing safeguards against out-of-control medical lawsuits. The result would be skyrocketing healthcare costs alongside giant paychecks for rapacious attorneys who would get paid ahead of patients.

How Is the New Initiative Different?

THEN

Proposition 46 in 2014: “Medical Malpractice Lawsuits Cap and Drug Testing of Doctors” Expanded the cap on non-economic damages Made no changes to process of medical malpractice lawsuits Made no changes to payment of attorneys

$12 million spent on whole campaign Pursued mostly by broader California trial-attorneys’ organization

8 LOS A N G EL ES M ED I CI N E | Q UA RT ER 1 2020

NOW

Proposed ballot initiative for November 2020 election: “Fairness for Injured Patients Act” Essentially eliminates the cap on non-economic damages Introduces changes in patient payment timing, obstructs judges from dismissing frivolous suits Eliminates or raises limits on attorney fees

$20 million already pledged toward campaign

Pursued mostly by lone Iowa attorney Nick Rowley

What’s at Stake?

If the “Fairness for Injured Patients Act” be-

comes California law, the most vulnerable and underserved patients will suffer the most, says LACMA President Dr. Sion Roy. And this will start with broad changes.

HIGHER SYSTEM-WIDE COSTS “The biggest issue is that it will drive up costs in our healthcare system across the board, no matter the provider — hospitals, practices, academic practices, small groups, Dr. Sion Roy or large groups. Everybody’s physician will have increased costs,” explains Dr. Roy, a cardiologist.

“That will further deteriorate access to care,” he says, “most notably for our patients who need it the most — our poorest patients, who already have access-to-care issues throughout the state, particularly in primary care.”

The chain of events can be complex. For example, because Medi-Cal payments to doctors are extremely low, often representing a net financial loss to physicians who treat them, many practices may simply stop taking MediCal and uninsured patients when they’re under

pressure from a much higher cost of malpractice insurance.

“You may just have an inability to see certain patients — Medi-Cal and uninsured patients are simply the most vulnerable,” says Dr. Roy. On the practice side, solo- and small-group practices will be under greater pressure than larger ones. “But the increased cost is a universal threat,” Dr. Roy says. “Thankfully, our largegroup providers are really an important part of this coalition — we’re all in this together.”

LESS ACCESS IN RURAL AREAS The elimination of the MICRA cap could also affect rural communities, Dr. C. Freeman adds. Even though older physicians in rural areas are often deeply connectDr. C. Freeman ed to their communities, prohibitive costs will force many of them to move, she says. “And one of the challenges we have here in California is the declining physician workforce — and rural areas are most affected.”

That means a delayed delivery of care — and a declining standard of community health in these areas with even higher costs.

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HIGHER HOSPITAL AND NURSING HOME EXPENSES

“Everybody’s physician will have increased costs — that will further deteriorate access to care.”

Meet the Opposition

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A geriatric psychiatrist, Dr. Freeman thinks a lot about the effect on hospital and nursing home costs. “With increased malpractice premiums, physicians may use screening tools or procedures more often,” she says.

“Hospitals in general carry a combination of self-insurance and commercial insurance, so these institutions would be more directly affected,” adds Dr. Roy. “And the kind of impact it’s going to have is to increase overall health costs.”

Banding Together to Save MICRA But that won’t happen if organized medicine and its allies band together as they have in the past.

In 2014, a group of trial attorneys and Consumer Watchdog lodged a very serious threat to MICRA in the form of Proposition 46 — spending more than $12 million on the campaign, according to the new effort’s backers.

Organized medicine and its allies spent a reported $58 million, and Proposition 46 died an ignominious death, with voters deciding against it by a 2-to-1 margin.

This is not the same fight, but it’s a great example of how to beat MICRA’s foes. We’ve done it before, we’ll do it again.

The new anti-MICRA effort has deep pockets and a lot to gain Iowa trial lawyer Nick Rowley is a major force behind the new antiMICRA ballot initiative, the “Fairness for Injured Patients Act.” He’s made quite a name for himself as a trial lawyer, and now he’s set his sights on the untapped potential of malpractice lawsuits in California.

As your California Medical Association notes, Rowley has vowed to spend more than $20 million of his own money to get this measure passed. But that’s nothing compared to the potential payoff, in the event MICRA’s cap on non-economic damage awards is lifted.

Rowley is good at what he does. In March 2016, he asked a Los Angeles jury to award $140 million to the widow of a man who was killed by a Metropolitan Transportation Authority vehicle. The jury awarded $8.3 million.

Just this past August, a Los Angeles jury awarded his client $15.4 million in damages against his employer, the Los Angeles Times, for age and disability discrimination. That award was recently overturned by

Alongside your California Medical Association, Californians to Protect Patients and Contain Health Care Costs (CAPP) is entering the fight to preserve affordable care in the state, as it did in the 2014 fight against Proposition 46, as well as previous struggles over MICRA.

Fighting for You

The group — which your CMA has joined — is a coalition of physicians, dentists, nurses, hospitals, safety net clinics and other healthcare providers united in vigorously fighting this initiative.

Even more allies are poised to join the fight, but aren’t ready to announce their intentions just yet. Rowley is in for a brawl.

a judge who ruled that Rowley should not have told jurors about the Times’s financial resources.

In a similar vein, Rowley has not been shy about using theatrics to accomplish his goals. For example, in 2016, he briefly dressed up in a full-body chicken suit during closing arguments to illustrate a client’s “humiliating” situation that led to a 26-second “melee,” according to a June article by the Courtroom View Network.

Joining Rowley is the activist group Consumer Watchdog, which put forward two sponsors for the measure, a father and a couple, who each had children who experienced an episode of medical malpractice.

Rowley also cites a personal experience as motivation for the ballot initiative, saying in a press release that his infant son’s lungs were “blown up” by a malpractice event.

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The Origins of MICRA

The conditions that led to MICRA were bad for patients and bad for practices. They show us what could happen again if MICRA is eliminated.

In the mid-1970s, California physicians found themselves in the middle of a crisis. Frivolous medical malpractice lawsuits and sky-high awards for damages had caused medical liability premiums to jump dramatically — and led medical liability insurers to cancel some physicians’ policies outright.

The situation peaked in early 1975, when insurers announced that many premiums would increase by 400%.

Instead of raising patients’ medical bills, forgoing coverage, leaving the state, or quitting outright, California Medical Association physicians did something else — they built a massive campaign to fix the problem.

Along with thousands of allied physicians, patients and medical professionals across the spectrum, your CMA delivered an urgent message to state legislators: Cut malpractice insurance costs now, for the good of all Californians.

In mid-May, a massive CMA-led rally featuring 800 medical professionals demanded that Governor Jerry Brown convene a special session of the Legislature to deal with the crisis.

May 16 delivered a breakthrough. Brown called a special session that began three days later and continued until Sept. 11. On that day, after months of intense negotiations and hearings involving CMA, its allies, insurers and trial lawyers, the Legislature passed the statutes we now know as the Malpractice Insurance Compensation Reform Act — MICRA. Brown signed the bill on Sept. 23, 1975. Ever since, MICRA has protected access to medical care throughout the state.

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