California’s Controversial “Prop 46” Would Quadruple Dollar Limits for Med Mal Pain and Suffering; Require Doctor Drug Testing

California’s Proposition 46 is an initiative that combines a number of controversial policies into one ballot. In broad terms, the Proposition would more than quadruple the cap on “pain and suffering” that could be awarded in a medical malpractice suit from $250,000 to $1.1 million. Second, it would require doctors and pharmacists to check California’s drug database before prescribing certain drugs. Third, it would make California the first state to require mandatory drug testing for doctors.

The media surrounding this proposition has dubbed it “lawyers vs. doctors.” Much of the funding on the “pro” side—about $10 million—has come from personal injury attorneys. Insurance companies, doctors, and hospitals have put in about 5 times as much to defeat the measure.

Malpractice Limit for Pain and Suffering

As a background, California’s current “malpractice cap” limits compensation for pain and suffering due to medical negligence at $250,000. This cap was part of the Medical Injury Compensation Reform Act of 1975, which was a response to skyrocketing medical insurance premiums for doctors and hospitals. California currently has the lowest non-economic cap in the country—most are in the $500,000 range or not capped at all. There are no limits on economic losses resulting from injuries—such as medical bills or lost wages.

While plaintiffs’ attorneys have been running ads to raise this cap for many years, Prop. 46 itself began tragically when a driver killed two young children while heavily medicated with prescription drugs. The children’s father, Bob Pack, found that no attorney would help him sue the doctor and hospital that Pack believed had wrongfully prescribed thousands of drugs to the driver. Attorneys have been reluctant to take such cases because of the high cost of litigation and the $250,000 cap. Because Pack’s children were dependents, his family had lost no wages; furthermore, because they had died, there were no medical expenses.

However, opponents of Prop. 46 say the measure will do more harm than good. The initiative has the potential to greatly increase healthcare costs, create more lawsuits, and perhaps cause physicians to seek states with different laws. 

Jason Kinney, spokesman for “no” on Prop 46, believes the initiative’s “greatest weak spot is its price tag.” He notes that “under Prop 46, trial lawyers stand to make a lot of money and everyone else is going to be stuck footing the bill.” Critics of the proposal note that increasing the potential malpractice recoveries will cause a spike in medical malpractice coverage. When health care insurance companies raise their rates, tax payers and patients all pay more in health care premiums.

The estimated state and local government costs from raising the cap on medical malpractice damages ranges from the low end of tens of millions to the high end of several hundred million dollars annually. These costs could be offset somewhat by savings from requirements on health care providers that may limit spending on prescription drugs. 

Mandatory Drug Testing

The initiative would place a lot of scrutiny on practicing doctors, especially after they make a mistake. Specially, Prop 46 requires:

• Hospitals to administer random drug and alcohol tests to doctors affiliated with the facility.
• Drug and alcohol tests if a doctor saw a patient within 24 hours of an “adverse event” or if a doctor is reported for possible use of drugs or alcohol while on duty or failing to follow an appropriate standard of care.
• The state medical board to take specific disciplinary action, including license suspension, if a doctor is found to have been using drugs or alcohol on duty or refuses to follow the drug and alcohol testing protocol.
• Doctors to report to the board any doctor believed to be impaired while on duty.

Sam Brodey of Mother Jones sums up the response from both sides of this aspect of the proposal:

Those in favor of Prop. 46 argue that doctor drug abuse in California is at “epidemic levels”—leading to devastating medical malpractice that kills millions per year. That claim doesn’t quite hold up to scrutiny: Backers cite a 14-year-old report stating that 18 percent of California doctors abused drugs or alcohol. But from 2003 to 2013, only 62 doctors had their licenses revoked for that reason. Estimates put the total number of practicing California physicians at about 100,000. It’s worth noting that the majority of Californians support testing—making this provision the “sweetener” to the other provision: raising the $250,000 award cap.

Kinney, too, believes this provision is a “sweetener” added to the proposal “to make increasing the cap palatable to voters.” While drug testing seems like good policy in theory, as written, the outcome would be virtually unworkable, notes Dr. Martin Fishman:

[Prop 46] would create the first statewide drug- and-alcohol-testing program in history — for any profession — that would require testing when the employees are off duty, including on personal vacation.

Proposition 46 would require doctors to submit to drug and alcohol testing up to 12 hours after the occurrence of certain events in a treatment setting.

However, because it can take days or weeks for infections, for example, to develop after medical care, drug and alcohol testing at that point would be meaningless. Doctors who missed a test for any reason would be reported to state authorities and have their medical license suspended.

Other critics simply point to the practical issues that would creep up on a daily basis if the Proposition was made law:

Imagine if the MD performed surgery that morning and was completely sober, yet a complication occurs 12 hours later and that evening after the doctor is at home enjoying a glass of Napa Valley wine, he/she would be required to report for testing and could be accused of being under the influence even though the doctor was not drinking at the time of the surgery.

Others note that while drug testing is mandatory in a number of industries, “adverse events” in medical treatment can take weeks or months before they become known. Doctors potentially could get suspended for not getting tested after an unknown error. 

CURES database

Finally, the proposition requires health professionals, including pharmacists, to check the statewide drug database before dispensing potentially abusive drugs to a patient for the first time to determine if the patient already has an active prescription. 

Many have argued that such a database would be susceptible to data breaches, however, the system has been up and running for several years now. The CURES database actually stems back to Mr. Pack’s initial efforts to curtail the over-prescription of certain prescription medication. His efforts paved the way for CURES, a statewide database that contains patient prescription records that doctors can check before prescribing medications. Prop. 46 would make these checks a requirement. 

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Voting on Proposition 46 will take place in the November 4, 2014 General Election.