In Depth on Proposition 46: Drug and Alcohol Testing of Doctors. Medical Negligence Lawsuits

Proposition 46 is an initiative statute that would (1) require hospitals to perform drug testing of doctors, (2) require doctors to check a statewide database before prescribing certain drugs, and (3) raise the 1975 cap on noneconomic damages in medical negligence lawsuits to reflect inflation.

BACKGROUND

Prop. 46—What’s in a Name? The Ballot Label Controversy

Your Neighbors for Patient Safety is the proponent signatory of Prop. 46. The group was organized by Robert Pack, whose two young children were killed by a hit-and-run driver under the influence of prescription painkillers and alcohol. The driver was an addict who had obtained prescriptions from multiple doctors and was able to get thousands of pills. The driver was ultimately convicted of second-degree murder, but there were no apparent consequences to the doctors who had furnished the prescriptions for those thousands of prescription painkillers. The proponents titled their initiative the “Troy and Alana Pack Patient Safety Act of 2014,” named after the two children who died.

The Attorney General named Prop. 46 “Drug and Alcohol Testing of Doctors. Medical Negligence Lawsuits.” Both the proponents and the opponents of Prop. 46 were dissatisfied with the title given by the Attorney General:

Proponents wanted their original title, emphasizing that the overall purpose of their measure is to save lives and improve patient safety.
Opponents, Patients and Providers to Protect Access and Contain Health Costs, wanted the title to stress the increase of the cap on noneconomic damages in medical negligence cases, which they assert is the real purpose of Prop. 46, while the other provisions only serve to disguise the measure’s true intent.

The Attorney General’s title gives top billing to the provision which requires drug and alcohol testing of doctors. Although drug testing is commonly required for other professions and occupations involving public safety, such as airline pilots, train operators, bus drivers, police, and firefighters, no state requires drug and alcohol testing of doctors. Prop. 46 would institute the first such program in the country.

PROP. 46 AND STATEWIDE DATABASE REQUIREMENTS

Current Law

California already has a database program for monitoring certain controlled prescription drugs, managed by the state Department of Justice. That program, the Controlled Substance Utilization Review and Evaluation System (CURES), started in 1972. CURES currently requires pharmacists to report certain prescription information to a statewide database for the purpose of assisting medical professionals and law enforcement in preventing the diversion and abuse of those controlled substances.

Recent Amendments to Take Effect in 2016

In order to obtain information from the CURES database, medical personnel must be registered with the system. Doctor registration is currently voluntary. However, a 2013 legislative amendment will require all doctors to register with the system by 2016. The computerized system is currently being upgraded to permit the anticipated expansion scheduled for 2016.

Why the Database Is Significant

Doctor shopping has become a matter of increasing concern because deaths by prescription drugs now exceed deaths by illegal drugs. An investigation by the Los Angeles Times found that drugs prescribed by doctors caused or contributed to nearly half of recent prescription overdose deaths in Southern California. According to the Times, in response to this investigation, Governor Brown has signed two bills aimed at cracking down on reckless prescribing.

The Center for Disease Control (CDC) reports that overdoses tied to common prescription painkillers such as Vicodin, OxyContin, Opana, and methadone killed more than 16,500 people in 2010. The quantity sold to pharmacies, hospitals, and doctors’ offices in 2010 was four times higher than a decade earlier.

The CDC recommends what it calls Prescription Drug Monitoring Programs (PDMPs), consisting of state-run electronic databases used to track the prescribing and dispensing of controlled prescription drugs to patients. The CDC also recommends that states should take measures to prevent doctor shopping and ensure that providers follow evidence-based guidelines for the safe and effective use of prescription painkillers.

Prop. 46’s Proposed Change to the CURES Database Program

The CURES program established the existing database for monitoring certain narcotic prescription medications. Prop. 46 would require a doctor to check the database the first time a controlled drug is prescribed to a patient. If the database shows that the patient already has a prescription for the same or a similar drug, the doctor would be obligated to investigate whether the patient’s medical condition warranted a new prescription.

PROP. 46 AND THE CAP ON NONECONOMIC DAMAGES

Attorney Contingency Fees

In medical malpractice cases, and other personal injury cases as well, it is typical for the injured person to hire an attorney on a contingency basis. Under this arrangement, attorneys are not compensated based upon their time, but instead are paid a percentage of the total amount the plaintiff is awarded in damages. If there is no recovery, the attorney collects nothing.

Existing Law Capping Noneconomic Damages

Damages in medical malpractice suits can be classified as either economic or noneconomic. Economic damages include such things as medical expenses and lost wages, while noneconomic damages can include pain and suffering, physical impairment, disfigurement, and decline in quality of life.

In 1975, California enacted the Medical Injury Compensation Reform Act (MICRA), which caps noneconomic damages in medical malpractice cases at $250,000. There is no cap on economic damages. MICRA also caps the percentage amount that attorneys can charge as a contingency fee. The amount that the attorney can collect is capped as a percentage of the amount recovered (40% of the first $50,000, 33% of the next $50,000, 25% of the next $500,000, and 15% on any amount over $600,000). This cap on the amount the attorney can charge on a contingency basis would not change under Prop. 46.

MICRA was passed in response to doctors’ complaints that medical malpractice awards were too high, driving up the cost of medical malpractice insurance. (There is no cap on noneconomic damages in any other type of personal injury case except medical negligence.)

MICRA’s Noneconomic Damages Cap and Inflation

MICRA did not index the $250,000 cap on noneconomic damages to inflation, and the cap has not been raised since it was enacted in 1975. In the nearly 40 years since MICRA was passed, if the cap had been pegged to inflation, the 2014 cap would be $1.1 million. The equivalent of the 2014 cap of $250,000 in 1975, if adjusted for inflation today, would be $57,600.

Caps on Noneconomic Damages in Other States

Although most states have limits on noneconomic damages in medical negligence cases, California’s cap of $250,000 is the lowest of any state in the nation. Only two states, Kansas and Montana, have a fixed cap as low as California’s. Four other states have a basic cap of $250,000 on noneconomic damages that can be raised under certain circumstances such as gross negligence or serious, permanent, or catastrophic harm, or where justice requires. Caps in other states range up to $750,000. At least seventeen states have no caps at all on noneconomic damages.

Prop. 46’s Proposal to Raise the Cap on Noneconomic Damages

Under Prop. 46, the cap on noneconomic damages in cases of medical negligence would be raised from $250,000 to $1.1 million. The amount of the increase was calculated to correspond to inflation since the $250,000 cap was enacted in 1975. Prop. 46 also would provide that the cap would be pegged to inflation going forward and adjusted annually. Prop. 46 makes no change to MICRA’s cap on attorney’s fees as a percentage of damages awarded to a plaintiff; that limit remains in place.

DRUG AND ALCOHOL TESTING OF DOCTORS

Drug and Alcohol Testing Requirements under Prop. 46

Hospitals would be required to conduct drug and alcohol testing of doctors who are affiliated with the hospital.
Random testing would be conducted, and testing would be required following any adverse event, defined to include mistakes during surgery, injuries associated with errors in medication, and any event causing death or serious disability of a patient. Failure to submit to testing could be a basis for suspension by the Board.
Hospitals would be required to report positive drug tests to the Medical Board of California (the Board), and the Board would be required to suspend the doctor pending the investigation of a positive test.
The Board would be required to take disciplinary action if the doctor was impaired while on duty.
Doctors would be required to report other doctors suspected of drug or alcohol impairment or medical negligence.
Doctors would be billed for the cost of their drug tests.
There would be a presumption of professional negligence in cases where the doctor was found to have tested positive for drugs or alcohol, or if the doctor refused to be tested.

Arguments In Opposition:

Prop. 46 was written and funded by trial lawyers. Its only real purpose is to enrich trial lawyers by making it easier for trial lawyers to sue doctors. It uses drug testing to disguise its true intent.
Quadrupling the cap on noneconomic damages would cost state and local governments hundreds of millions of dollars every year due to increased costs of litigation and malpractice insurance, which in turn would lead to increased taxes and fees and/or cuts in government services. The cap on damages keeps costs contained, preserving access to affordable health care.
Prop. 46 would cause an increase in medical malpractice insurance, which would cause many doctors to close their practices or move to states with lower-priced malpractice insurance. Access to doctors and health care would be reduced.
A statewide database of prescription drugs is subject to hacking and constitutes a threat to personal privacy rights.
Prop. 46 is poorly thought-out and sloppily written. The state medical board does not have the resources to administer the program.
The negative consequences of Prop. 46 would outweigh any potential benefits: higher costs of health care, higher taxes, lost access to doctors, loss of privacy by risking that personal prescription drug history would be compromised.

Arguments In Support:

Preventable medical errors are the third leading cause of death in this country, so an aggressive reduction program would save lives.
Nearly 20% of health professionals suffer from substance abuse at some point during their careers. Drug testing of doctors would identify impaired doctors and deter drug and alcohol abuse in others.
Drug testing of doctors would reduce preventable medical errors and save lives and significant health care costs. Testing is already required for pilots, police, firefighters, train operators, bus drivers, and other safety workers.
California’s cap on noneconomic damages is the lowest in the nation, with no increase in 39 years. It should be raised to reflect inflation to fairly compensate victims of medical negligence, and make it easier for patients with legitimate claims to find an attorney to take a case on a contingency basis.
The controlled drug database already exists under current law, securely managed by the Department of Justice. Requiring doctors to check the database before prescribing dangerous medications would reduce over-prescription and drug abuse, saving lives and hundreds of millions of dollars.
Raising the cap on noneconomic damages would not lead to unreasonable increases in malpractice insurance or limit access to health care or cause doctors to leave the state.

More about Supporters:

Your Neighbors for Patient Safety ● www.YesOn46.com

Supporters of Prop. 46 include:

(Signers of official arguments are in bold.)

Bob Pack, father of victims of preventable medical error
Carmen Balber, Executive Director, Consumer Watchdog
Henry L. “Hank” Lacayo, State President, Congress of California Seniors
Sarah Hitchcock-Glover, R.N., mother of victim of preventable medical error
Alejandra Gonzalez, mother of victim of preventable medical error
Jennifer Westhoff, mother of victim of preventable medical error
Consumer Federation of California
Congress of California Seniors
California Teamsters Public Affairs Council
California Conference Board—Amalgamated Transit Union

Major Financial Contributions (Financial contributions to ballot measure campaigns can change frequently—readers may check for more recent contribution updates by visiting votersedge.org, Fair Political Practices Commission and Cal-Access.)

(as of Septemer 24, 2014 total: $6.2 million)

Consumer Attorneys of California ($1,183,000)
Consumer Watchdog ($290,000)
Robinson Calcagnie Robinson Shapiro Davis, Inc. ($250,000)
Panish Shea & Boyle ($130,000)
Aitken Aitken Cohn ($127,550)
Greene Broillet & Wheeler, LLP ($125,000)
Shernoff Bidart Echeverria Bentley ($116,000)
Casey, Gerry, Schenk, Francavilla, Blatt & Penfield, LLP ($115,000)
Bruce G. Fagel, a Law Corporation ($110,000)
Walkup Melodia, Kelly, & Schoenberger ($105,000)

From Voter’s Edge:

http://votersedge.org/california/ballot-measures/2014/november/prop-46/funding

More about Opponents:

Patients and Providers to Protect Access and Contain Health Costs ● www.NoOn46.com

Opponents of Prop. 46 include:

(Signers of official arguments are in bold)

Tricia Hunter, R.N., Executive Director, American Nurses Association, California
Tom Scott, California Citizens Against Lawsuit Abuse
Betty Jo Toccoli, President, California Small Business Association
Donna Emanuele, R.N., President, California Association of Nurse Practitioners
Ann-Louise Kuhns, President, California Children’s Hospital Association
Stuart Cohen, M.D., Chair, American Academy of Pediatrics, California
Los Angeles County Democratic Party
California Republican Party
White Memorial Medical Center
Valley Industry & Commerce Association
Union of American Physicians and Dentists
SEIU-USWW (United Security Workers West)
SEIU United Long Term Care Workers (ULTCW)
Los Angeles Gay & Lesbian Center
American Civil Liberties Union
California State Association of Counties

And a long list of medical and dental providers, societies, and hospitals

(as of September 24, 2014 total: $53.5 million)

Cooperative of American Physicians (CAP) ($10,168,704)
The Doctors Company ($10,111,200)
Norcal Mutual Insurance Company ($10,000,000)
California Medical Association (CMA) ($5,206,638)
Medical Insurance Exchange of California (MIEC) ($5,000,000)
Kaiser Permanente ($5,000,000)
California Hospital Association (CHA) ($2,500,000)
California Association of Hospitals and Health Systems (CAHHS) ($2,500,000)
American Dental Association ($2,052,709)
The Dentists Insurance Company ($1,620,000)

From Voter’s Edge:

http://votersedge.org/california/ballot-measures/2014/november/prop-46/funding