What started as a Danville couple's crusade for justice for their dead children has become a war between some of California's most powerful special interests and the year's costliest ballot measure battle.
Proposition 46 would raise the state's 39-year-old cap on medical malpractice damage awards, require doctors to take random drug tests and mandate use of a database designed to reduce prescription drug abuse.
The measure pits the proponents — patient advocates and lawyers — against the health and insurance industries. The opponents have put up $91.7 million so far, outraising proponents by more than 15 to 1. Most of the $6 million raised by proponents has come from lawyers.
The flood of cash is taking its toll: Recent polls show the once-popular measure now has such weak support that some ballot measure experts believe it can't recover.
But Consumer Watchdog President Jamie Court, whose Santa Monica-based organization is leading the campaign for the measure, said he's convinced it can still pass if enough people learn what it's about.
Voters only need to see one of our ads for it to resonate, said Court, who accuses the No on 46 campaign of running a torrent of confusing, deceptive ads.
The other side, however, says it's Court and his cohorts who are being deceptive.
This was thrown together by people who don't understand how health care is delivered, said Dr. Tom Sugarman, an emergency physician in Antioch and Alameda and the immediate past president of the state's chapter of the American College of Emergency Physicians. They're trying to practice medicine in the guise of making more money for lawyers.
Bob Pack, the Danville resident whose two children were killed by a drunk and drugged driver on Oct. 26, 2003, said the measure could save another child or a mom. It's going to help reduce prescription narcotics abuse in our society. So it's just the right thing to do.
The motorist who hit Troy and Alana Pack, 10 and 7, had consumed alcohol, Vicodin and muscle relaxants before getting behind the wheel.
The driver, Jimena Barreto, who had been convicted of drunken driving three times before, was found guilty of two counts of second-degree murder in 2005 and is now serving 30 years to life in prison.
In the weeks before the crash, Barreto had ¿received six Vicodin prescriptions from six different Kaiser Permanente doctors, who had failed to check into the injuries for which she claimed she needed the pills.
Pack and his wife, Carmen, say those doctors were never held accountable. The Packs helped push the state to beef up the state's prescription drug monitoring database, which aims to prevent the kind of doctor shopping that let Barreto amass her pills. This measure would now make it mandatory for all California doctors to use that system.
But that's not the controversial part.
A 1975 law caps at $250,000 the amount a plaintiff can recover for so-called noneconomic damages — those not involving medical bills or loss of wages — in medical malpractice cases. That's the sum the Packs were able to recover for each of their children's lives. And in many other cases, Bob Pack said, the cost of hiring attorneys and expert witnesses often mean that grieving families receive only a fraction of that.
Proposition 46 would adjust the cap for inflation, meaning it would quickly be raised to about $1.2 million. That would punish physician malpractice and deter sloppy practices, Court said.
Medical groups and insurers counter that lawyers merely want to make it more profitable to sue and the increased liability will place a huge financial burden on doctors already struggling to accommodate all the changes to the health care system required by the Affordable Care Act, commonly called Obamacare.
It's going to massively increase costs across the state, which is going to lead to decreased access to care, Dr. Sugarman said of Propostion 46. He said doctors will be forced to spend more time consulting the database and less time treating patients — and medical malpractice insurance costs will soar.
The state insurance commissioner already has the power to reject excessive malpractice insurance rate increases. But Sugarman argues that since so many doctors and hospitals are self-insured, their costs are sure to rise and will be passed on to patients.
Opponents also say Proposition 46 will violate doctors' privacy rights.
Natasha Minsker, associate director of the American Civil Liberties Union of Northern California, said the measure's requirement of random, suspicionless drug testing is an unconstitutional violation of due process. Courts have held that such testing is allowed only for people in safety-sensitive positions, meaning someone's life is literally in their hands right at that moment, she said.
Minsker said Proposition 46 is so sweeping that it demands such testing of any doctor with admitting privileges at a hospital, yet excludes nurses and other medical professionals who are involved in life-or-death situations.
The measure also requires drug tests within 12 hours of notification of an adverse event — a serious, preventable error such as surgery on the wrong patient or body part, a medical device left inside during surgery or a disability or death due to infection. But, Minsker said, such events often aren't documented until days, weeks or months later, so requiring drug tests at that point would disclose nothing about a doctor's condition when the treatment was given.
Sugarman said trial lawyers couldn't convince the Legislature to raise the malpractice damages cap, so now they've gone to voters instead and sweetened the pot by packaging it with other provisions they believed would appeal to voters.
But that's not really what their issue is, Sugarman said. They really only care about the cap.
Pack, however, argued that all three provisions are under the umbrella of patient safety. And while Proposition 46's opponents would prefer to lobby each of these provisions to death separately in Sacramento, he said, this is the only path left to let the citizens of California take it into their own hands for their families' protection.
Josh Richman covers politics. Follow him at Twitter.com/Josh_Richman . Read the Political Blotter at IBAbuzz.com/politics
WHAT PROP. 46 WOULD DO
Raise California's cap on "pain and suffering" damages in medical malpractice cases, set at $250,000 in 1975, so that it's indexed to inflation. If the measure passes, the cap will quickly be raised to about $1.2 million.
Require doctors to submit to random drug testing while on the job — and testing with 12 hours of notification of an "adverse event."
Require doctors to consult an already existing state database to prevent "doctor shopping" by prescription drug abusers.
Money raised in Prop. 46 battle
Proponents (mostly lawyers and consumer advocates): At least $6 million
Opponents (mostly insurers and health care companies): At least $91.7 million
Source: California Secretary of State's Office