Updates on MICRA, Patient-Notice Rules, Abortion Law, and Medical Board

This update provides another overview of last year’s newly enacted bills, most of which have become effective this year. For our prior healthcare law update, click here. This installment looks at more new laws impacting (sometimes indirectly) healthcare providers.

A Tip (or Rip) of The Cap

Assembly Bill 35 was probably the biggest headline grabber of the bunch. It significantly amended MICRA. MICRA was passed in 1975 to combat skyrocketing healthcare costs stemming from increased medical-malpractice actions. It spawned a small industry in Sacramento, seeking to preserve the MICRA protections (supported by providers) and to lift them (supported by trial-lawyer groups). Following much negotiation and wrangling in Sacramento, a ‘compromise’ (of sorts) finally passed and was signed into law. The trial lawyers were again planning to run an initiative to remove the caps. Such initiative drills are costly to defend and politically difficult to predict—the initiative at issue here was removed from the ballot as part of the deal allowing AB 35 to pass.

The biggest news is the $250,000 cap on non-economic damages has been lifted in malpractice cases, increased now to $350,000. The cap will annually increase for a decade to $750,000 ($40,000 per year). Thereafter an inflation adjustment of 2% will be added annually. The law also doubled the wrongful-death cap and adds more annual increases. Further, it significantly increased the judgement amount required should a defendant want to use periodic payments to satisfy the judgement. Previously a $50,000 verdict would provide an avenue to pay over time; now the verdict would have to be $250,000. On the providers’ side, it prevents someone’s apology or statement of sympathy from being used in any legal proceeding. So, while physicians will be liable for more damages, and must pay them immediately, they will be able to say ‘sorry’ without fear of liability.

Notifying Patients of CMS’s Open Payments Website

AB 1278 creates more patient-notice rules, specifically dealing with payments from pharmaceutical companies to physicians, surgeons, and osteopaths. They will now have to give written notice to patients at their first visit directing them to CMS’s Open Payments website. They must also post such notices in all their offices (and in a place likely to be seen by patients). If a healthcare company employs a provider, that company would have to adhere to the notice rule.

Starting January 1, 2024, providers must also have a link to the Open Payments website link on any of their websites. And the same is true for healthcare companies’ websites they too, will need to have a link included. The new rules do not apply to hospital ER’s. Violating these notice rules may result in professional-licensure discipline.

NP’s Providing Abortion Without Supervision

SB 1375 did not fit in our prior update on abortion-law changes in California and, strictly speaking, affects physician extenders more than physicians. Essentially, this law—supported by the Nurse Practitioners Association—allows NP’s to perform certain types of abortions without physician supervision. Those providers who serve as NP supervisors should take note of this expansion.

A Few Medical Board Updates

After this year, the MBOC will only receive certain medical and post-graduate training certification documents electronically; they will not accept paper copies. While this is not broadly applicable to all physicians, our hunch is that it is just a matter of time—so look for not just what is due to the Board, but how you must submit it next time you have to send them anything.

Also, given all the news nationally about pain-medication issues, you may want to review the MBOC’s recently published “Guidelines For Prescribing Controlled Substances For Pain.”

The legal caution with the guidelines, and with all “guidelines,” is that they are not formally law or regulation. But they likely would still carry weight of some sort in a legal proceeding—and that is where it can be difficult if you are not familiar with them. If you are facing a Board investigation, you might assume you will be asked if you knew of and followed the guidelines. If in discovery in a malpractice case, you would expect the same. Guidelines tend to, over time, become people’s expectation for physician behavior—even though they are not law. And note, the guidelines even say, explicitly: “The guidelines do not replace a physician’s clinical judgement and individualized, patient-centered decision-making.” So, unfortunately, we can envision a scenario where a doctor gets in trouble for not following the guidelines and another scenario where the doctor gets in trouble for following them. Imagine if a patient-specific decision results in not following the guidelines, but that patient then has an adverse outcome: heads they win, tails you lose.

If you need a more thorough analysis of these new laws, send us a note at info@cjattorneys.com and we will do a deep dive for you. Also, if you know of others that would like our updates, they may subscribe here: https://cjattorneys.com/news/. If you do not want to receive these client updates, simply click the “Unsubscribe” link at the bottom of this newsletter.

Best,

Keith W. Carlson and Nima A. Jalali