Ballot Initiative Seeks Drug Testing For Doctors

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As California voters mull a proposed ballot initiative aimed at sniffing out malpractice and abuse, a Bakersfield OB-GYN has lost his license for allegedly writing prescriptions for "illegitimate uses."

Dr. Richard Wallrath was already on probation from a 2009 complaint over problems with the way several patients were treated when new allegations surfaced that he'd written prescriptions for himself and gathered prescriptions from multiple other doctors.

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The prescriptions were for the sleep aid Ambien and pain relievers Norco and Vicodin.

Proponents of a ballot initiative that would add new regulations to the medical profession say the case validates their efforts.

"This Dr. Wallrath is the perfect poster child for why we need this law," said Jamie Court, president of the nonprofit advocacy group Consumer Watchdog.

Wallrath could not be reached for comment, but his attorney, Peter Osinoff, said, "There were personal reasons for surrendering his license. He was essentially retired. It just didn't pay to spend thousands of dollars to defend his license when he wasn't really practicing."

Wallrath had not attempted to renew his license when it came up for renewal in 2012 or at renewal time again this year. The revocation became effective April 1.

Proponents of the ballot initiative call it the Troy and Alana Pack Patient Safety Act, or Pack Act for short, but if it makes it onto the November ballot, it will appear under the heading "Drug and Alcohol Testing of Doctors/Medical Negligence Lawsuits."

The initiative would do three things: mandate drug testing for doctors to prevent physician substance abuse, require physicians to use a state prescription drug database to catch drug addicts consulting multiple doctors, and eliminate the state's 38-year-old malpractice cap, currently $250,000 for children and others who are not wage earners.

Excluding San Benito County, which has yet to report, county election offices are in the process of validating 842,947 signatures gathered to put the issue before voters on Nov. 4. It needs 504,760 valid signatures to qualify.

The initiative is named for the children of its chief proponent, northern California Internet entrepreneur Bob Pack.

In 2003, his pregnant wife Carmen, his son, daughter and two of their friends were on a sidewalk when a drunk driver high on painkillers jumped the curb and plowed into them.

Pack's son Troy, 10, and daughter Alana, 7, were killed. The two other children survived, and so did his wife, but she lost the twins she was carrying.

Two years later the driver, Jimena Barreto, was convicted of murder and sentenced to 30 years to life.

Pack and his wife have since had another daughter. Noelle, 7, was conceived with donor eggs from Carmen's niece.

But that wasn't enough to give the family closure. Ever since the accident, Pack, 58, of Danville, has campaigned relentlessly for reforms he says would prevent similar tragedies.

"If these safety procedures had been in place, it would have saved my children's lives," he said.

What has haunted Pack for more than a decade is that the driver obtained her narcotics prescriptions from doctors practicing in the same Walnut Creek hospital, but since the doctors didn't communicate they weren't aware the prescriptions were redundant.

At the time of the accident, the state had been operating its Controlled Substance Utilization Review and Evaluation System, or CURES, database for three years, a program designed to ferret out prescription duplication by allowing doctors and pharmacists to see what prescriptions their patients already have.

But the system was manual, and based on faxing paper documents. Sometimes it took months for doctors to get responses to their inquiries.

Pack, who previously worked for AOL and NetZero, used his technical skills to design an electronic version doctors could use to get information immediately. The database went digital in 2009, but its administration was severely underfunded and its use voluntary.

A new fee on physician licenses recently created a state fund to expand the program's capacity and maintain it. The ballot initiative would make using it mandatory.

The California Medical Association supported the bill that created the new funding mechanism for CURES.

It opposes the ballot measure, however, because of the provision changing the state's Medical Injury Compensation Reform Act, or MICRA, allowing for higher litigation awards involving victims who are not breadwinners.

Pack was incredulous that he couldn't sue for more than $250,000 when his children were run over. He thought doctors who wrote the prescriptions for the woman who killed them were culpable in the accident.

The California Medical Association says the Pack Act is a dressed-up ruse to enable more expensive medical malpractice lawsuits, pointing to the enthusiastic support it has from trial lawyers.

"This is a flawed measure that is certain to drive up costs for both health consumers and community clinics, and reduce access to care for families across California," said Cathy Frey, chief executive officer of the Central Valley Health Network, which serves low-income patients at clinics in 20 counties, including Kern.

"It was written by trial attorneys and political consultants, not health professionals, and its negative impact on patients, especially in rural areas, will be severe.

"This initiative will make it far more difficult for our patients to get the medical treatment they need when they need it."

That's why not just health providers but some business, government and labor organizations are against it, too, Frey said.

An analysis by the nonpartisan Legislative Analysts Office found implementing the measure could lead to higher taxes and insurance premiums and increase the state's health care costs by nearly $10 billion a year.

Pack countered it makes sense to update a cap on awards that hasn't been adjusted for inflation in 38 years. He calls the threat of increased health care costs an empty scare tactic.

Some families can't even get attorneys to take their cases because the awards are so low, he said.

"This isn't a trial lawyer law. It's a victim-justice law that holds doctors accountable," Pack said.

He's got an ally in Consumer Watchdog, which supported the effort to get the measure on the ballot.

"The doctors are going to try to scare people, but I think voters are a lot more afraid of a drunk doctor than they are of a sleezy lawyer," Consumer Watchdog's Court said.

One in six of the California Medical Board's disciplinary actions against doctors was for abuse of drugs or alcohol or for overprescribing drugs, Court said.

Between 2008 and 2013, 104 California doctors were disciplined for DUIs and another 149 for abusing alcohol or drugs. Another 27 were caught under the influence at work, Court said.

"Truck drivers, police, all sorts of other professions have to be drug tested. It's ironic that the workers with the most access to drugs are the ones who don't have to," Court said.

If the Pack Act were law, Court added, the Wallrath case in Bakersfield might never have escalated.

According to the original 2009 complaint, Wallrath was medically negligent in his treatment of three women; gave Botox injections to a fourth patient without her knowledge or consent; and failed to keep adequate medical records.

For that, the medical board ordered Wallrath to undergo additional clinical and administrative training, and assessed him $3,173 to cover the costs of supervision and monitoring during five years of probation.

Consumer Watchdog said the Wallrath case has inspired the organization to ask the medical board to immediately subject all doctors on probation to mandatory drug and alcohol testing.

"We think that should happen automatically," Court said. "That case of (Wallrath), that was just irrational behavior. Now we understand why, but look how many years it took for us to find out."


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