SACRAMENTO – Buoyed by a favorable ballot title and summary prepared by Attorney General Kamala Harris, backers of an initiative that would increase California's 38-year-old cap on medical malpractice awards are ready to gather signatures that could lead to a colossal political battle between doctors and attorneys next fall.
The proposed measure would quadruple the maximum of $250,000 in damages plaintiffs can receive for noneconomic damages in medical malpractice lawsuits – so-called "pain and suffering" awards. It also would implement several patient-safety protections, including a requirement that hospitals submit doctors to random drug and alcohol testing and report adverse results to the state Medical Board.
Supporters have retained Westlake Village-based firm Kimball Petition Management to handle the initiative's signature-gathering efforts, according to a campaign organizer. Sponsors must collect 504,760 signatures of registered voters by March 24 to qualify the measure for the November 2014 ballot.
The $250,000 limit has been unchanged since it was established in 1975. The measure proposes that it be adjusted for inflation, and data from the U.S. Bureau of Labor Statistics show that based on 38 years of cumulative increases in the Consumer Price Index, the inflation-adjusted value of $250,000 in 1975 dollars is now nearly $1.1 million.
The measure is backed by the Consumer Attorneys of California, Consumer Watchdog and Bob Pack, a former Internet company executive from Danville. Pack's two young children were killed when they were struck while walking on the sidewalk by a car whose driver was stoned on painkillers that had been prescribed by several doctors.
Out of that tragedy, Pack helped to create a database doctors can check to see whether a patient has received pain-medication prescriptions from other doctors, but use of the database is voluntary. The proposed initiative would make use of the database mandatory.
The summary of the initiative, released late last week by the Attorney General's Office, titles the measure, "Drug and Alcohol Testing of Doctors. Medical Negligence Lawsuits." It begins with three sentences dealing with drug and alcohol testing and the use of the patient drug history database. The fourth sentence says it increases the "$250,000 cap on pain and suffering damages in medical negligence lawsuits to account for inflation."
The attorney general's summary does not use the word "malpractice," although the word is included in the portion prepared by the Legislative Analyst's Office in assessing the measure's potential fiscal impacts on state and local governments.
At a campaign kickoff event Monday – the 10th anniversary of his children's deaths – Pack said it is time for Californians to take patient-safety issues into their own hands.
"Parents like me, who have lost children to addicts run amok and to dangerous doctors who breed addiction, are constantly shocked at the unwillingness of the physician lobby to hold accountable the smaller percentage of dangerous doctors responsible for the majority of harm," he said.
Sponsors are calling the initiative the "Troy and Alana Pack Patient Safety Act."
The medical community, led by the California Medical Association, the statewide physicians' association, is rallying against the measure. They claim lifting the medical malpractice cap would lead to the closure of health clinics, force some doctors out of business, increase medical costs and reduce access to care.
Nine medical provider associations and medical malpractice insurance companies already have combined to contribute $31.5 million to defeat the measure. Observers believe if the measure qualifies for the ballot, it could engender a $60 million to $80 million campaign next year.
Molly Weedn, spokeswoman for the California Medical Association, called the measure "an attack on physicians" and said opponents will focus their arguments on lifting the cap on medical malpractice damages.
"We're going to be talking to voters about what the measure is really about. All of the other provisions are really window dressing," she said. "This would take money directly out of the health care system and put it into the pockets of lawyers. It's the fact of the situation."
Opponents have retained Democratic strategist Jim DeBoo to manage their campaign. DeBoo headed the Assembly Democratic Caucus' campaign efforts last year that resulted in Democrats unexpectedly winning a two-thirds majority of seats in the Assembly.
The initiative's backers have retained former Clinton White House adviser Chris Lehane to oversee the campaign. Lehane was the strategist behind last year's successful campaign to pass Proposition 39, which resulted in a $1 billion corporate tax increase by changing the way in which out-of-state corporations are allowed to calculate the percentage of their profits subject to California taxes.
Lehane said the measure's drug-testing requirements will make sense to voters.
"Patient safety is clearly something that resonates with folks," he said. "A lot of people are sadly and tragically being killed by medical errors. The public is aware of that, so you start with a foundation of belief here."
Lehane expects supporters will be heavily outspent by the medical community.
"They're going to spend money like the tobacco industry has," he said. "You're going to have the medical-industrial complex spending $50 million to $60 million at a time when there is a crisis in patient safety."
Although he portrays initiative supporters as David in a David vs. Goliath political battle, he acknowledges that backers will not be defenseless.
"The trial lawyers have resources," he said. "It's not like they're without weapons in the arsenal of democracy."
