When consumer advocates were preparing a fall ballot initiative to raise the sum victims can recover in medical malpractice lawsuits, they considered tacking on an inducement that would resonate with voters across California.
After running eight to 10 ideas past focus groups and through opinion polls, they found strong support for a proposal to make California the first state to require random drug and alcohol testing of doctors. They reason that if pilots must submit to drug screenings, why shouldn't doctors?
"Look, we are going to the public, and we wanted to find out what they cared about," said Jamie Court, the president of Consumer Watchdog, one of the groups behind November's Proposition 46. "The reality is they care most, and they are fearful most, of doctors being high or drunk."
"In fact, they think there is already drug and alcohol testing," Court added. "And they can't understand why there isn't."
The decades-old fight between doctors and attorneys over raising the medical malpractice award cap would already have produced among the year's most intriguing and expensive ballot-box battles. The measure would raise the limit to $1.1 million from $250,000, the first cap adjustment to the Medical Injury Compensation Reform Act in 39 years. Another provision requires doctors to consult a drug history database before prescribing certain medications.
Consumer Watchdog and its allies have spent months dialing up pressure on doctors and their allies. The group released a slow trickle of cases in which physicians abused drugs or alcohol and then harmed patients. One of a series of Web videos features a Secret Service agent, a badminton player and a janitor relaying in song that they have to "pee in a cup," while a lab-coat-wearing doctor sings "I don't have to do it!"
The deep-seated rivalry took a personal turn when Consumer Watchdog sent "thank you" letters to neighbors of the former head of a doctors' lobbying group wrongly implying that he was caught dealing drugs and had patients who died of prescription drug overdoses. The group said the postcards were meant to hold him accountable for blocking reform that would have ended the careers of the cited doctors.
The focus on physician drug testing has drawn attention from health care providers across the country.
Opponents of the initiative – who include medical professionals, labor unions and business organizations – say proponents are using drug and alcohol testing of doctors to mask the real intent, to quadruple the limit on malpractice awards. They argue the change would cost taxpayers millions of dollars a year.
"In my experience, they've woefully underestimated the intelligence of California voters," said Gale Kaufman, a senior strategist for the opposition. "They know deceptive window-dressing when they see it. Our research shows that, when voters see three issues, they don't understand what they're all doing in one measure but they do intuitively understand it's going to cost them lots of money. Personally, I think they've outsmarted themselves on this one."
Paul Phinney, immediate past president of the California Medical Association and the recipient of the attack mailers, said the proposal was "mean-spirited" and an "almost-crass" attempt to financially benefit its trial lawyer supporters. He said some proponents were prepared to "completely discard" drug testing and the prescription database if doctors agreed to raise the cap on MICRA in the Legislature.
"We were basically negotiating against the trial attorneys with a gun held to our head," said Phinney, a pediatrician in Sacramento. "They had this initiative that was going to qualify and they said 'negotiate with us at the starting point we choose or we'll run this initiative.' That's not a negotiation.
"So we chose to sit back and take this thing head on because we believe so strongly that it's very bad policy."
The more than 39,000-member medical association has not taken a position on a standalone drug-testing proposal. Phinney said a credible drug-testing program was something they could have a conversation about, but that the measure is poorly thought out and sloppily written. Among other aspects, he questioned whether the state medical board has the resources to administer the program.
It would require hospitals to conduct random drug and alcohol screenings on their affiliated doctors.
Physicians also would need to take a test if they were responsible for treating a patient within 24 hours of an adverse event such as a botched surgery, injuries resulting from medical errors, or serious injury or death.
Doctors could be tested if they were reported for possible on-duty drug or alcohol use. Hospitals would be responsible for billing physicians for the tests and for reporting verified positive results or missed tests to the Medical Board of California. The board could then suspend a physician's license.
In April, USA Today published a special report that found 100,000 doctors, nurses and other medical professionals were struggling with drug addictions. A 14-year-old paper by the state medical board stated at any given time between 1 percent and 2 percent of doctors need treatment for substance abuse.
Phinney acknowledged there are "bad doctors" out there and said it's "very important that they are identified and gotten help so that they do not harm patients." However, he added, "I think it has been overblown by the proponents of this initiative who see it as a way to get people to vote for it."
Supporters argue that millions of residents are drug-tested by employers, and because doctors are free of the requirement, their use is able to remain largely undetected. In a recent letter to the CMA, Court and Bob Pack, the author of Proposition 46, called on officials there to "come clean" about doctor drug testing. "The reason Proposition 46 is on the ballot in order to save lives is because your association has refused to discuss improving patient safety with the most important stakeholders in the medical system: the patients," they wrote.
Consumer Watchdog's campaign against drug- and alcohol-abusing doctors includes emails to media and supporters about an anesthesiologist who allegedly administered anesthesia to a patient "while simultaneously administering the drug to herself via an additional intravenous line," and an OB/GYN who tested positive for codeine and cocaine when nurses complained.
The group also is showcasing the story of Dr. Stephen Loyd, acting chief of medicine at Mountain Home VA Medical Center in Tennessee. Loyd said he initially started using pain medication to deal with the pressures of life, including coming out of residency and crushing student-loan debt. As Loyd puts it, "it became my alcohol." The drug abuse continued for more than three years as his tolerance grew to nearly 100 pills per day.
"We are the only profession that I know of that is responsible and entrusted with policing ourselves, and it doesn't work," he said.
Loyd sought treatment from an in-state physician's health program and was able to return to his profession under the condition that he undergo random drug testing. He said testing would help identify what is a physical problem, not a moral flaw.
"It's not a punishment," he said. "It's identifying someone with an addicted disease and they have the potential to affect so many people. This is a patient safety issue."
Opponents say any such system should be more selective than the initiative proposes. Natasha Minsker, associate director of the ACLU of Northern California, said the legal standard for drug testing of workers is for those in "safety-sensitive" positions like pilots and train operators. She noted the initiative does not limit testing to doctors in safety-sensitive positions and instead includes any that have admitting privileges in a hospital.
She said the initiative also goes too far by putting doctors who fail tests at risk of losing their license. Minsker said some of the basic protections in other drug-testing systems include sending people to treatment when they fail tests.
"It is possible to create a constitutional drug-testing system for different professions, potentially including doctors, but this provision doesn't do that," she said.
Court said the measure builds in due process by allowing those who test positive to consult with a medical officer, who would review their individual situation and make a determination before it goes to the medical board.
"If doctors can say 'I had a legal prescription, or I had a medical marijuana prescription, or I didn't have a prescription, but I didn't smoke on the job and there's no other evidence,' these are all things (that occur) before you get to the verified positive result that someone can make a determination about," he said. "On the other hand, if you have someone who is taking 100 pills a day, there's really not much you can do to explain it, and it becomes self-evident."
Call Christopher Cadelago, Bee Capitol Bureau, (916) 326-5538. Follow him on Twitter @ccadelago