Proposition 46, the Medical Malpractice Lawsuits Cap and Drug Testing of Doctors Initiative, also known as the Troy and Alana Pack Patient Safety Act of 2014, is the result of a personal family tragedy in which two children, walking with their mother to get ice cream in their neighborhood after a Halloween party, were killed by a driver under the influence of prescription drugs. After the deaths of Alana, 7, and Troy, 10, their father Bob Pack quit his job to become a full-time activist and advocate for changes to existing law that, in his view, if enacted, could prevent similar tragedies in the future.
The legislation captures the critical elements Pack believed precipitated the tragedy: a driver who had gone “doctor shopping” to get multiple prescriptions for pain medications; doctors who had failed to consult a controlled-substance database that could have revealed the multiple prescriptions for the patient in question; lawyers who refused to take Pack’s case on behalf of his children because of the low ($250,000) cap on medical malpractice, originally enacted in 1975; and the lack of drug-testing laws for doctors.
The proposed legislation would require health-care practitioners to consult the state prescription drug history database before prescribing certain controlled substances as medications; increase the state’s cap on non-economic damages (pain and suffering) in medical negligence lawsuits to adjust for inflation with subsequent yearly adjustments (with a likely maximum of $1.1 million to account for nearly four decades of inflation); require drug and alcohol testing of doctors and reporting of positive tests to the California Medical Board; require the CMB to suspend doctors pending investigation of positive tests and take disciplinary action if the doctor was found to have been drug-impaired while on duty; and require all health-care practitioners to report any doctor suspected of drug or alcohol impairment or medical negligence.
The measure, if approved, would be the first in the nation to require drug testing of physicians, although drug testing is in place for many public-service and public-safety personnel.
Opponents say the initiative isn’t about protecting patients, but about increasing the legal fees of lawyers who prosecute medical malpractice suits.
The state legislative analyst and state finance director estimate increased state and local government health-care costs from raising the cap on medical malpractice damages will range from tens of millions of dollars to several hundred million dollars annually. They posit that those costs could be offset by potential savings to state and local governments from required doctor monitoring of the state prescription drug database to alcohol and drug testing of physicians.
Specific provisions of the legislation cite studies showing one in 10 doctors suffers from drug or alcohol abuse during his or her career resulting in misdiagnoses and botched surgeries that can cause permanent injury or death to their patients.
Proponents argue that health-care costs to consumers won’t rise if malpractice insurance fees to doctors are raised as a result of this legislation. They note medical malpractice insurers have consistently had such high profits annually that even if the cap on medical negligence lawsuits were raised, insurers would continue to earn high profits. They claim that the insurance industry overall earns a 6.5-percent return whereas the medical malpractice insurance industry earns a 16.7-percent return, more than 250 percent of the industry average. They claim that the state has “an effective and successful system to regulate medical malpractice insurance premiums” that won’t change if the cap is raised.
Supporters include: Consumer Watchdog, the Consumer Federation of California, the Congress of California Seniors and the Consumer Attorneys of California. Opponents include most medical associations, the California Republican Party, the California Chamber of Commerce, the California NAACP, ACLU of Southern California, the California Teachers Association and the Los Angeles County Democratic Party.
Opponents argue that if the legislation is passed, medical lawsuits and payouts will skyrocket and that health care consumers will have to pay the bill. They also cite privacy concerns from doctors being mandated to consult a database with personal patient information with no increased security standards. They also claim doctors in poor areas could be negatively impacted by higher costs of practicing in those areas, leading to reduction of patient care in underserved communities.
For more information, read the measure’s text at www.sos.ca.gov/elections/ballot-measures/qualified-ballot-measures.htm.