Medical Negligence in the California Spotlight as Physicans Face Mandatory Drug Testing

November 25, 2014 Updated: April 23, 2016

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A California proposition to randomly drug-test physicians is stealing the thunder from the medical negligence measure it was attached to and drug-reform advocates have risen up against it. Proposition 46, which initially centered on increasing the non-economic “pain and suffering” damages in medical negligence claims and lawsuits from $250,000 to $1.1 million.

The proposition’s author, Bob Pack, had a difficult time finding an attorney to represent him when his children were killed 11 years ago by a driver under the influence of prescription drugs. The low potential damages that would have limited attorney fees made it extremely difficult to find an attorney willing to take on the case. Pack said that when he began writing the proposition, medical experts encouraged him to add a provision to drug-test physicians.

Doctors would be drug-tested, if the proposition passes, in three instances: 1. At random 2. Within 24 hours of patients under their care suffering an “adverse event 3. When the physician is the subject of a possible substance abuse report

According to the East Bay Express, the California law, if it passes, would make the state the only one requiring random drug test for doctors. While the passage of the proposition is tentative, many medical and legal observers are watching it because of the impact it may have on medical negligence claims based on physicians who may have been under the influence of legally prescribed or illicit substances when providing patient care. Medical Negligence claims are a different beast from Personal Injury claims.

A medical negligence claim requires that the claimant prove two different things: 1. The healthcare professional did not carry out their responsibilities, fault, and that failure is what created the position the patient is in now, avoidable harm.

Fault

A Medical Negligence Attorney will talk about something called a breach of duty.Simply put, this means that for the treatment received the claimant’s care fell below the standard practices found in a reasonably competent specialist.

Avoidable Harm

Also called causation, it merely means that the claimant needs to demonstrate the negligent care, rather than the underlying condition, caused harm.

While it may sound easy, it can be quite difficult, especially when the claimant was already ill. Many attorneys who practice specializes around medical negligence cases instruct their clients to get a report from an independent medical expert.

Time Constraint

Normally, a person is required to initiate a compensation claim within 36 months of the date of the injury or the date when the connection between the injury and medical negligence was first discovered. Taking the proper steps in a timely manner is crucial and it’s best to start investigating the case completely at the earliest opportunity. Some evidence may rely on memory and it’s always best to record the details when they are still fresh.

The Medical Negligence Claim Process

Often, when someone has been affected by inappropriate medical care, it’s not compensation they are seeking; sometimes the person just wants an apology. Other times, financial compensation is sought if only to help make sure other individuals don’t suffer the same fate. Regardless of the reasons for starting a compensation claim, the claimant is entitled to make a written complaint about received treatment to the National Health Service. The deadline for filing a formal complaint is six months.

Costs

If the claim is successful, the party that pays the compensation will normally also be required to pay legal costs.

When the American comedian, Joan Rivers, died following a normally routine procedure, the spotlight was turned on medical negligence. The issue was pushed further on-stage when the American agency tasked with providing medical care to the nation’s veterans, The Veteran’s Administration, was repeatedly hit with numerous claims of medical negligence.

It is an issue that continues to be refined and addressed in the judicial system — and there isn’t an end in sight to the discussion.