Op-Ed Commentary: Raise The Cap On Medical Malpractice Damages

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The following Op-Ed Commentary was published in the San Francisco Chronicle on Mon., Oct. 29th, 2013.

Drug overdoses are the leading cause of accidental death in America, and the majority of those preventable deaths are due to prescription drugs. One of the biggest obstacles to prevention is the California Medical Association, whose physicians are sworn to do no harm, but which has used its power in the Legislature to keep narcotics flowing without accountability.

Gov. Jerry Brown vetoed legislation sending coroners' reports about prescription drug overdose deaths to the state medical board because the doctors undermined it. Legislation mandating that doctors check the electronic prescription drug database, known as CURES, about a patient's history before prescribing narcotics to addicts didn't make it out of the California Senate because the medical association stopped it.

Gov. Brown did sign modest legislation offering funding for the CURES prescription database, but only after a public battle with the medical association.

Parents like me, who have lost children to addicts run amok and to dangerous doctors who breed addiction, are consistently shocked at the unwillingness of the physician lobby to hold accountable the smaller percentage of dangerous doctors responsible for the majority of harm.

Ten years ago, my 7-year-old daughter, Alana, and 10-year-old son, Troy, died on a roadside after a drugged driver fell unconscious at the wheel, swerved off the road and killed them. The driver turned out to be a doctor-shopping drug addict who had no physical symptoms, but managed to stockpile narcotics without any oversight. The doctors who prescribed her thousands of pills were never held accountable for their negligence.

In the wake of my family's tragedy, I developed the CURES database, a searchable system that tracks prescriptions dispensed in California. This year's modest funding victory to upgrade the database, after years of stonewalling by the doctors' lobby, won't do enough if doctors aren't required to check the database before prescribing narcotics.

The medical association's opposition to that change is just another symptom of a larger problem: doctors feel they are above the law.

Every other profession and industry in California is fully liable for the harm it causes. But physicians and hospitals deemed responsible for medical malpractice have a cap on the damages they pay victims that was set 38 years ago and has never been adjusted for inflation. The medical lobby consistently opposes any increase to the cap, or other special rules that limit liability only for doctors.

Eighteen percent of physicians have substance abuse problems, according to the California Medical Board. Nonetheless, physicians don't have to submit to drug or alcohol testing. Pilots, bus drivers and firefighters all have to take drug tests because our lives depend on their sobriety, but surgeons do not.

Exceptionalism for the medical establishment is the reason families like mine have grieved needlessly, but voters may soon have the opportunity to end it.

If the Alana and Troy Pack Patient Safety Act initiative qualifies for the ballot, voters will get their say on preventing prescription drug abuse and whether laws that apply to the rest of society should also apply to doctors.

Will voters decide?

An initiative authored by Bob Pack is circulating that requires mandatory drug and alcohol testing for physicians, mandatory use by physicians of the CURES database and an index for inflation to the 38-year-old cap on malpractice victims' damages. It needs 504,000 signatures to qualify for the ballot.

Bob Pack is the founder of the Troy and Alana Pack Foundation.


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