3 Reasons Every Californian Should Vote Yes on Prop 46

by Gary Gwilliam on September 17, 2014

Prop 46This November Californians have the chance of a lifetime to evoke the biggest changes in consumer law in nearly 40 years by voting “Yes” on Proposition 46 also known as the Troy and Alana Pack Patient Safety Act. Prop. 46 delivers three greatly needed must have changes that correct the injustices of the Medical Injury Compensation Reform Act of 1975(MICRA) that have been allowed to continue for nearly 40 years. The following three changes provide the type of impact and oversight desperately needed in California. Combining these three points could bring a positive sea change to the quality of care for patients and eventually provide patient safety measures that could greatly decrease the number of patient injuries and death, due to hospital and doctor errors,  in California each year:

  1. Adjustment, for nearly 40 years of inflation, of the MICRA cap on noneconomic damages
  2. Mandatory random drug and alcohol testing for doctors
  3. Mandating use of the CURES prescription drug database

The insurance industry, their lobby, and allies continue to ignore the facts by attacking attorneys and creating a misconception that this fight for reform is all attorney fees and bottom line revenue.

The fact of the matter is Proposition 46 the Troy and Alana Pack Patient Safety Act is about patients, people like you and me and our families, receiving safe and competent treatment while in the care of doctors and hospitals. It is about accountability for doctors to perform their jobs clean and sober without interference from drugs or alcohol which have caused patient injury and death in record numbers. And Prop. 46 is about accountability of doctors who, with impunity, continually aid and abet patients by prescribing powerfully addictive painkillers which created a new wave of prescription drug addicts in California.

2 Patient’s Stories and 3 Reasons to Vote Yes on Proposition 46

Every day patients are being injured or even killed through the negligence and medical errors of doctors and hospitals under the current MICRA law. The following is an open letter describing two tragic stories and illustrating exactly why Proposition 46 is the answer to our decades long patient safety problems.

Open Letter Supporting Proposition 46

“It has happened to tens of thousands of Californians, and not a single one of them expected it. No one thinks they, or a loved one, will be killed, maimed or disfigured by medical negligence. Yet these things happen. Experts say up to 440,000 patients die each year of preventable medical errors, the nation’s third leading cause of death behind only cancer and heart disease.

But too little is being done to stem that silent death toll. Too many victims are kids. Too many are moms and grandparents. They’re people like you and me.

And babies like Mia Chavez. She was just six weeks old when she passed away because of whooping cough, a serious but treatable childhood illness. The problem was, Mia never got treatment. Her mom took her to Mia’s pediatrician, then to the emergency room, but again and again the doctors wrote it off as something else, even though Los Angeles County was in the midst of a serious whooping cough outbreak. With the right treatment, she never would have died. But her doctors were negligent.

Prop 46They’re women like Tina Minasian. She underwent abdominal surgery in 2002 and then suffered for months as an infection caused by the procedure festered painfully. Minasian was left mutilated at the surgery site. Imagine her shock upon later discovering her surgeon was an alcoholic participating in a medical board diversion program. The appointed “monitor” of the doctor’s sobriety was his office manager, who dutifully ignored the physician’s continued drinking. The doctor’s ongoing alcohol problem finally cost him his license in 2012, a decade after Minasian’s botched surgery.

That’s why I support Proposition 46 on the November ballot: To make all of us in California safer.

 3 Common-Sense Changes to Improve Patient Safety

Drug and alcohol testing of doctors: USA Todayran a recent story reporting on a federal study saying that more than 100,000 health care workers are currently battling drug problems. Add to it that another 400,000 are fighting alcoholism, and we have a very significant problem that endangers the lives of patients. In California, nearly 1 in 5 doctors will battle substance abuse in their lifetimes. Prop 46 addresses this serious patient safety problem by requiring random drug and alcohol testing of doctors. Airline pilots, truck drivers and many others in jobs that affect public safety are tested. Why not doctors, who hold our lives in their hands? Leading figures in the medical industry agree the time has come for doctors to be tested, including the inspector general of the U.S. Department of Health and Human Services and patient safety experts at Johns Hopkins.

Stopping doctor-shopping addicts: The Centers for Disease Control has called prescription drug abuse the fastest growing drug epidemic in the nation. To help control abuse, California has developed a statewide Internet database so doctors can check to see if a patient is “doctor shopping” drug abuser. The problem is, fewer than 1 in 10 doctors in California bother to use the database. Prop 46 would require doctors to check that database before prescribing prescription drugs to a patient for the first time. Mandatory use of similar databases in other states has dramatically reduced the number of “doctor shoppers” there.

Accountability for medical harm: In 1975 California established a $250,000 cap on the amount of pain and suffering damages that can be awarded to those harmed by medical negligence. That amount has not been adjusted for inflation, despite the cost of everything else skyrocketing over the past four decades. Prop 46 would update the cap, restoring the same economic power it had in 1975. That would give you something closer to fair compensation if you were to be a victim of medical harm, and it would provide a greater financial deterrent to prevent harm in the first place.

Foes of Prop 46 are financed primarily by the malpractice insurance industry, which has poured in most of the money into the $60-million campaign against the initiative. They’ve launched a statewide ad blitz centered on distortions and fear tactics.

They claim updating the cap on malpractice compensation would lead to soaring medical malpractice premiums and cause doctors to quit or leave the state, reducing your access to health care. They won’t offer you any evidence, because there is none. And they won’t tell you that in states where similar caps have been not just adjusted but eliminated in recent years, malpractice premiums have not gone up and there are actually more doctors per capita since the caps were removed.

And doctors won’t tell you California’s non-partisan Legislative Analyst’s Office said there are “potentially significant state and local government savings” associated with the patient safety provisions of Prop 46 – through lower costs of public safety, social services and other health care related to prescription drug abuse, as well as preventing some medical errors by identifying substance-abusing doctors and providing financial incentive for better health care by updating the malpractice cap.

Foes also want you to think Prop 46 is all about making money for lawyers who represent those harmed by medical negligence. But they won’t tell you that compensation for those lawyers is capped by law, a cap that would not change under Prop 46, and the vast majority of damages awarded go to those who were harmed.

And they certainly won’t tell you that should medical malpractice strike, a good lawyer is your only chance for justice, fair compensation and accountability against the health care machine.

 I strongly support Proposition 46 for a safer California, and I hope you will join me in voting YES on Nov. 4.”








whistleblower“It is outrageous that Sonoma County’s Human Services Department is discriminating against the very population they exist to serve and even more outrageous that they fired an employee who insisted that they treat those individuals fairly” Gary Gwilliam attorney Gwilliam, Ivary, Chiosso, Cavalli, & Brewer

Our firm, Gwilliam, Ivary, Chiosso, Cavalli, & Brewer, filed a lawsuit on behalf of Ms. Madeline Jen Kin, a former Sonoma County Human Services Department personnel manager who was fired due to her whistleblowing activities. The complaint was filed August 27, 2014 in Sonoma County Superior Court. Ms. Jen Kin had a solid background as a experienced human resources professional whose job responsibilities included managing employee discipline, performance, termination, and payroll.

Sonoma County Human Services Department: Mission and Values

The Sonoma County Human Services Department “Mission and Values” statement includes the Director’s Goals statement:

“Clients feel welcomed and get help to meet their needs. Staff feel valued, safe, and are happy to work at HSD. The community looks to HSD as a resource and values human services.”

Simply put, a major goal of the Human Services Department, and why it exists, is to help people with disabilities.

Whistleblower Allegations Against Sonoma County Human Services Department

“She (Ms. Kin) reported several times that she didn’t think they were treating employees with disabilities fairly and they told her ‘don’t find an accommodation, fire them,’” Jayme Burns attorney Gwilliam, Ivary, Chiosso, Cavalli, & Brewer

In her lawsuit, Ms. Kin alleges she was fired for whistleblowing about her department’s treatment of disabled employees; specifically for reporting that disabled employees were being targeted for discipline and termination. The allegations that the Sonoma County Human Services Department, which exists to help people with disabilities, was discriminating against its own disabled employees is a sad and unacceptable irony.

Whistleblower Discipline and Dismissal

Two reported examples of why Ms. Kin felt compelled to report her boss Kiergan Pegg the Human Services Department Manager include:

  • An employee was fired for violating a non-perfume policy even though the employee was forced to carry scented dryer sheets in order to mask an odor caused by her medication
  • A male employee suffering from severe computer-related pain was fired prior to the specialized office equipment designed to relieve his pain was delivered to the office

Consequently, Ms. Kin reported Mr. Pegg for targeting disabled employees for discipline leading to termination. Prior to Ms. Kin’s report, Mr. Pegg had given her a glowing performance review. Within three weeks of being informed by Equal Employment Opportunity coordinator Taryn Young of Ms. Kin’s complaint, Mr. Pegg fired Ms. Jen Kin just short of her completing her one-year probation.







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