Medical Malpractice Initiative Qualifies For November Ballot

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Measure to lift ceiling on medical malpractice judgments qualifies for California's November ballot
– Voter initiative would require drug testing for doctors in California
– California ballot measure rekindles fight between insurers, doctors and trial lawyers, consumer advocates

What promises to be a hotly contested statewide voter initiative to raise the ceiling on medical malpractice judgments and require drug testing for physicians qualified Thursday for the November ballot.

The measure pits insurance companies and medical providers against consumer advocates and trial lawyers, a clash expected to trigger a bitter, and extremely expensive, campaign.

Insurance companies and medical groups opposing the measure raised more than $33 million in 2014 alone, with most of that still in the bank, including several multimillion-dollar contributions from medical malpractice insurers. Proponents of the initiative raised just under $700,000 this year, with $42,000 still in hand, state campaign finance records show.

The initiative rekindles an entrenched battle between trial lawyers and health care providers over medical malpractice damages.

Proponents of the measure are seeking to alter the state’s landmark Medical Injury Compensation Reform Act, which caps certain malpractice
damages, such as those for pain and suffering, at $250,000.

The initiative would raise the pain-and-suffering cap to approximately $1.1 million, accounting for inflation since the law was signed in 1975, and index the cap to future inflation rates.               

“We need to update the law so that victims of medical negligence have access to justice, and dangerous and impaired doctors are deterred,” said
Jamie Court, president of Consumer Watchdog, an advocacy group backing the measure.

The prospect of raising the damages cap is fiercely opposed by doctors, insurers and other medical providers.

“More medical lawsuits and higher payouts is a budget buster for all of us — it will sharply drive up costs for health consumers and taxpayers, reduce health access across underserved communities, and make it harder for community clinics to keep their doors open and offer vital services to those who need it most,” said Louise McCarthy, who heads the Community Clinic Assn. of Los Angeles County.

The measure’s backers say because of the damage cap, it is economically impossible for lawyers to take on many malpractice cases.

The initiative also would require hospitals to conduct random tests on physicians for drugs and alcohol. Physicians would also face testing after incidents of preventable medical errors. Doctors would be required to report to the state’s Medical Board if they have knowledge of a physician using drugs or alcohol while on duty. If a doctor tests positive or refuses to submit to screening, the board may suspend the doctor’s license.

Supporters point to a California Medical Board report in 2000 that estimated 8% of physicians in the state have had substance abuse problems in their lifetime.

“When physicians have access to controlled substances and when they abuse them, or alcohol, there are catastrophic results for patients,” Court said. “Pilots and bus drivers and other public safety workers are required  to get drug and alcohol testing, and so should doctors.”

Those against the initiative say the drug testing requirement is more about politics than policy, noting that Court, in an interview with The Times last December, spoke of how well the provision performed with focus groups.

"The measure’s proponents have called this provision the 'ultimate sweetener,' because it was written at the last minute by their political pollsters, not by health experts, in a desperate attempt to get voters to swallow the other flawed provisions," said Dr. Richard Thorp, president of the California Medical Assn.       

Another provision of the ballot measure would require that, before prescribing  or dispensing certain drugs such as OxyContin or Vicodin to a new patient, a doctor or pharmacists must consult a state-run online database to see if the patient already has a prescription to that medication.

The database, known as the Controlled Substance Utilization Review and Evaluation System, or CURES, has been a personal crusade for Bob Pack, an Internet entrepreneur from Danville whose two young children, Troy and Alana, were killed in a hit-and-run by a driver impaired by alcohol and prescription drugs. The initiative is named after his children.

A 2013 law secured more funding for the database, which has been electronic since 2009, but Pack wants to make physicians’ use of this
database mandatory.

"I believe it’s the number one way to cut down on prescription drug abuse," Pack said. Requiring a doctor to check a patient's prescription history "will cut down on doctor shopping and the diversion of prescription drugs."

Opponents argue there would be problems implementing that

The database "needs to be updated and modernized, and nothing in the initiative does that," said Tim Gage, a former state finance director who evaluated the proposal for the opposing coalition. "Therefore, the initiative will put health providers in the untenable position of either violating the new law or withholding necessary treatment from patients unless the law is suspended."

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