By Jason KUROSU
If approved by voters in November, Proposition 46 will alter what California patients can receive in medical malpractice lawsuits, as well as require the state’s doctors to undergo random drug testing. These are among a series of moves designed to curb potential physician misconduct and neglect.
Titled the Medical Malpractice Lawsuits Cap and Drug Testing of Doctors Initiative, the ballot measure is geared specifically towards prescription drug abuse and its ramifications in potential medical malpractice lawsuits, whether in regard to overprescribing by doctors or doctors themselves abusing prescription drugs.
Prop 46 would raise the cap for non-economic damages (i.e. pain, suffering, emotional distress) from $250,000 to $1.1 million. The $250,000 cap was set in 1975 as part of the Medical Injury Compensation Reform Act (MICRA), a cap which Prop 46 advocates say has not been enough of a deterrence for medical malpractice.
“There has been a serious lack of legal accountability,” said Carmen Balber, executive director for Consumer Watchdog, a consumer advocacy group and one of the biggest donors for Yes on Prop 46.
Also known the Troy and Alana Pack Patient Safety Act of 2014, Prop 46 resulted from an incident which took the lives of 7-year-old Alana Pack and 10-year-old Troy Pack. The two children were struck by a car whose driver had been prescribed medication from six separate doctors.
Prop 46 intends to protect against such “doctor shopping” by mandating that doctors utilize a system for prescribing medication which would review prospective patients for past substance abuse or existing prescriptions for habit forming drugs such as Oxycontin, Vicodin and Adderall. The Controlled Substance Utilization Review and Evaluation System (CURES) would provide physicians with patient information that would allow them to evaluate whether a patient should be prescribed a particular drug. CURES is currently undergoing upgrades, which are scheduled to be completed by the summer of 2015.
Drug testing for doctors would occur under tenets of Prop 46 both at random and in the case of an adverse incident where either a patient or the prescribing doctor was abusing prescription drugs. Physicians found in violation of a drug test would be subject to a medical board review and potential suspension of their medical license.
Proponents argue that utilizing CURES and drug testing for physicians will reduce incidents of dangerous drug abuse, such as the car accident that killed Troy and Alana Pack. Balber cited a study by the Mental Health Services Administration which stated that 103,000 medical professionals abused illicit drugs per year.
“We just want the same kind of testing that the government requires for the FAA, truck drivers, other blue collar workers,” said Balber. “The kind of testing the government requires for all people whose lives are in our hands.”
Opponents of the proposition are numerous in the medical community, who claim that the proposition will raise healthcare costs with higher medical malpractice insurance rates, leading to less available care for patients, with high malpractice insurance premiums taking a toll on smaller healthcare providers, such as community health centers.
“Labor traditionally stands on the side of consumer protection,” said Stuart Bussey, M.D. and Union of American Physicians and Dentists president in a press release. “However, the protections in this measure are weighted toward trial attorneys, not consumers. The initiative will hurt California’s most vulnerable people – low income families and children – by making it harder for them to find healthcare providers close to where they live.”
A report by the Legislative Analyst’s Office of the proposition’s fiscal impact estimates that state and local government healthcare costs will increase, “likely rising from the tens of millions of dollars to several hundred million years annually.”
The rising costs will presumably be offset by savings which Prop 46 would provide by preventing problems associated with prescription drug abuse and in turn reducing costs to law enforcement and social services, among other programs.
The LAO analysis does indicate though, that “the amount of annual savings is highly uncertain, but potentially significant.”