The controversial debate over when life ends has taken center stage the past several weeks after 13-year-old Jahi McMath was declared brain dead three days after undergoing tonsil surgery at Children's Hospital Oakland. Both in court and in the media, a respected hospital whose doctors and nurses are dedicated to providing care for children on MediCal was pitted against a family searching for answers on how this could have happened and trying to save their daughter's life. As the hospital and the family battled in court over whether to remove the ventilator keeping Jahi breathing, talking heads battled in the media over the definition of life and death, with some claiming her family should let her rest in peace and accept her death while others claimed her family has a right to hold out for a miracle and keep her alive. Lost in the conversation is how a little-known California law is shaping how this tragedy unfolds.
We don't know all of the facts surrounding how Jahi suffered such a severe brain injury. What we do know is that she choked on her own blood and was without oxygen for at least 10 minutes. When the brain is deprived of oxygen, the difference of just a few additional minutes is critical, and the delay in getting a doctor to re-open her airway likely left the hospital wondering whether they would soon be facing a lawsuit for medical negligence.
In California, unlike in most other states, when a child dies due to medical negligence there is an artificial limit placed on the value of their life. That's because of the Medical Injury Compensation Reform Act (MICRA), a law passed in 1975 that places a $250,000 cap on non-economic damages. Due to this law, if Jahi remains on a ventilator, the hospital could face a multimillion-dollar verdict for economic damages, with a jury deciding what it would cost to continue to care for her medical needs and what the cost is of her lost wages due to her inability to work. However, if Jahi were to be taken off of the ventilator, the family may only recover $250,000 no matter how much a jury decides is a fair value to compensate them for the pain and suffering endured due to the loss of their child.
This law is unique to the medical profession in California. If a child were to die because of a reckless driver in a car accident or because of a pilot's error in a plane crash, it would be up to the jury to decide what they believe is fair to award the family due to their pain and suffering over the loss of a child. However, if a child dies due to an error made by a nurse or doctor, the jury's authority to decide how to compensate the family is taken away from them, without their knowledge. In these cases, a jury could return a substantial verdict only to find out afterward that the verdict will be reduced to $250,000, an amount set nearly 39 years ago. While social security benefits, wages, and the cost of goods and services has kept up with inflation, the cost of a child's life remains at an amount set back when Gerald Ford was president and Jerry Brown was governor for the first time.
Bob Pack knows all too well about this outdated law and how it impacts families whose children die as a result of medical negligence. In 2003 his 7-year-old daughter Alana and his 10-year-old son Troy were killed when a car jumped the curb where they had been riding their bikes and struck them both. The driver had been taking large quantities of prescription pills given to her by doctors from a local hospital. In the weeks before the accident, different doctors gave her 340 Vicodin, a narcotic painkiller, and 180 Flexeril, a muscle relaxant. Pack wanted to hold the doctors accountable for over-prescribing their patient in the hopes that it would prevent over-prescription in the future. However, because of the cap placed on the value of his children's lives, the cost of pursuing a case was not economically feasible.
"I spoke to numerous attorneys about MICRA and got the same answer, which was, 'Because of the cost to litigate a malpractice lawsuit, you will have no chance to recover anything.' So, in reality, my children's lives were worth zero," said Pack.
For the majority of medical malpractice cases, attorneys are not paid by the hour; instead, they invest their own time and money into pursuing the case and take a percentage of the recovery if they win. This contingency fee structure allows people who could not afford to hire an attorney pursue their case. Due to the current cost of litigating a medical malpractice case, it is oftentimes not economically feasible for attorneys to invest their money if the recovery is limited to a small percentage of $250,000. That's because it could cost $200,000 alone for the attorney to pursue the case, most of which is attributed to paying medical expert witnesses, doctors who charge for their time to review records and testify about their opinions. Many medical experts charge between $750 and $1,000 per hour for their time, and a single expert can easily charge $50,000 to review and testify in a case.
For Pack, the inability to hold the hospital accountable to try to stop the over-prescription of narcotics left him frustrated. "I wanted the hospital and doctors to improve their prescribing protocols of narcotics, but because I never got them to court, they have never changed their behavior to this day." So he is sponsoring a ballot measure called the Troy and Alana Pack Patient Safety Act, which would adjust the cap to meet inflation, raising it from $250,000 to $1 million, along with requiring doctors to submit to random drug and alcohol tests and creating a statewide database to track how many prescription pills a patient has obtained.
"The importance of raising the cap on MICRA to adjust it for inflation is about allowing victims and their families to achieve a sense of justice and accountability," said Pack.
Adjusting or removing the cap would also get rid of the potential conflict of interest hospitals face in caring for their patients. If a patient goes without oxygen to the brain for several minutes but remains on life support, the hospital could face a multimillion-dollar verdict if a jury determines the injury was due to a medical error. However, if a patient is taken off life support, the hospital currently would face a financial liability of, at most, $250,000.
A basic requirement for any doctor-patient or hospital-patient relationship is trust. For a family to give consent to a doctor for them to perform a surgery on their child, the family must put their trust in those doctors and nurses who care for their child. To the family that is asked to agree with the hospital's recommendation to end life support for that child, the appearance of a possible financial motive by the hospital is enough to break that trust and destroy any chance for a meaningful dialogue with the hospital.
We will never know whether financial motivations played a role in Children's Hospital's decision to encourage the McMath family to take Jahi off the ventilator despite their objections. However, due to the substantial difference in financial liability a hospital faces if a patient lives or dies, there is a concern that hospitals could have a financial incentive in turning off life support, a concern that would be erased if the value of a patient's life were not dependent upon an outdated law.