The lawyers who put together and funded Proposition 46 might have been too clever for their own good. The main motivation for the measure is inescapably clear: to raise the ceiling on “noneconomic damages” in medical malpractice lawsuits — in plain language, “pain and suffering” — from $250,000 to $1.1 million. That cap was set in 1975, and has not been adjusted for inflation. A very credible case could be made that it’s now so low that it makes it difficult for certain victims to seek redress in court.
But this measure overreached in a decidedly cynical way.
Its proponents have openly admitted that the provision for random alcohol and drug testing of doctors was added as a political sweetener.
Voters should not be fooled by the title and summary put together by Attorney General Kamala Harris’ office that focuses on the testing as if it were the centerpiece of the measure. It is not. (Harris has been a less-than-stellar steward of ballot titles and summaries throughout her term, often skewing them with loaded language for political effect. Her descriptions of everything from pension reforms to tax increases have been so egregiously unfair that they raise the question of whether the responsibility should rest with a less-partisan officeholder. We’ll save elaboration on that issue for another day.)
It’s telling that the Yes on 46 campaign has not focused on the higher-damages limit in its advertising.
Voters who might be tempted to support substance-abuse testing on doctors — after all, if it’s required of firefighters, pilots and truck drivers … why not doctors? — should look at the details of how Proposition 46 works. It’s incomplete and, in some important ways, misdirected. It applies to physicians in hospitals, but not those who are operating on their own. It does not include nurses. It calls for an immediate suspension for doctors who test positive or who fail to get tested within 12 hours of an adverse event — which can be impractical or impossible at times, especially in rural areas. That rigid requirement could leave patients without health care until the California Medical Board has a chance to review the evidence.
We’re not necessarily opposed to drug testing of doctors. But such a law should be drafted judiciously, in consultation with medical experts, to consider and address real-world problems — not by political strategists trying to spritz populist perfume on a controversial measure.
The other potentially problematic element of Proposition 46 would require health care providers to consult a statewide database of prescription-drug history before describing painkillers and certain other controlled substances. The idea is to keep patients from “doctor shopping” for multiple prescriptions. The measure has been called the Troy and Alana Pack Safety Act of 2014 after two children who were killed by a driver under the influence of prescription medicine. Again, it’s an appealing issue, but a poorly drafted solution. The problem with this measure is that the statewide database is nowhere close to ready, and the requirement to check an incomplete and sometimes unresponsive system would expose medical professionals to liability in the meantime. The Legislature should consider such a law after the system is determined to be fully operational.
Back to the underlying reason for this measure: the $250,000 cap on damages for pain and suffering. It must be noted that current law imposes no limit on “economic damages” that would include future earnings and medical expenses. Supporters of Prop. 46 rightly note that the system works against people with low or no wages — children, the elderly, stay-at-home parents — or survivors of those who died from a medical error (and thus have no future medical expenses). The Yes on 46 campaign has cited cases in which victims have been unable to find legal representation because of the $250,000 cap. This is the most compelling argument for Proposition 46.
Unfortunately, California voters don’t get to pick and choose what they like and don’t like in a ballot measure. Voters should reject this