Patient Safety, Malpractice Costs At Issue In Proposition 46

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A years-long battle between doctors and trial lawyers is coming down to Proposition 46 on the November ballot, leaving voters to sift through a mass of conflicting claims in an effort to pick the winner in what will be the most expensive race of the fall.

That's not the way the two sides describe it, though. For supporters of the measure – which would raise the cap on medical malpractice awards, require doctors to use a state database on certain prescription medicines to keep dangerous drugs from falling into the wrong hands, and institute drug and alcohol testing for physicians – Prop. 46 is a simple matter of patient safety and fairness.

The measure "saves lives and saves money," said Jamie Court, president of Consumer Watchdog, the activist group that helped qualify the initiative for the ballot. "It's also the right thing to do."

But opponents see Prop. 46 as little more than an effort by attorneys to change the 1975 law that caps noneconomic damages in malpractice cases at $250,000. Raising that limit to $1.1 million and letting it climb each year with the cost of living, as Prop. 46 would do, means more money for attorneys who sue doctors, opponents argue.

The opponents, including physicians and the companies that insure them, say the rest of the initiative is little more than a populist smokescreen for higher malpractice awards that will cost the state and its taxpayers millions.

Costly campaign

It will be an expensive contest. Supporters of Prop. 46 have collected about $4.5 million, mostly from lawyers and attorney groups, including $1.1 million from the Consumer Attorneys of California.

That's dwarfed, however, by the $59 million opponents have raised, including $10 million from the California Medical Association, $4 million from the California Dental Association, $5 million from the California Hospital Association, and millions more from insurance firms.

In a study of the measure, the state Legislative Analyst's Office found that there were costs associated with the initiative, but potential savings also.

Raising the malpractice cap could cost state and local governments several hundred million dollars annually in health care costs, the study found. But it also said there could be "potentially significant" savings from monitoring often-abused prescription medicines and cutting down on medical errors by doctors who are drunk or high on drugs.

The $250,000 malpractice cap on noneconomic damages, unchanged since 1975, is unfair in cases where people are injured or killed because of a doctor's wrongdoing, said Bob Pack, a backer of the initiative. He's been involved in medical reform issues since his two children were killed in Danville in 2003 by a driver who had been drinking and was high on prescription drugs.

There is no malpractice limit for actual damages, which are medical or rehabilitation costs plus the loss of future income. But those don't apply when the victim is a child or other person who didn't earn a paycheck and was killed, meaning there was neither a loss of income nor continuing medical costs, Pack said.

Revising damage cap

What's more, "with a $250,000 limit on children's lives, you can never find an attorney to take the case," especially when it can cost $100,000 or more to do the background work and provide expert witnesses, Pack said. The cap, he said, "prevents people from getting fair compensation."

Opponents of Prop. 46 acknowledge that it's time to take a look at revising the damage cap, but argue that a ballot initiative is the wrong way to do it.

"We agree it's a complicated issue and should be discussed," said Jason Kinney, a consultant for the No on 46 effort. "But this doesn't attempt to be a compromise."

The other two parts of the measure, the prescription drug database and the drug-testing rules for doctors, highlight the problems of ballot box legislation, Kinney added.

California is one of a number of states with a database designed to track the prescribing and dispensing of potentially abused drugs such as OxyContin, Vicodin and Adderall. The idea is both to deter doctors from overprescribing and patients from "doctor-shopping," which is using a number of physicians to get multiple prescriptions to either abuse or sell.

Prop. 46 would require doctors and pharmacists to check the database when they dispense a drug with a high potential for abuse to a patient for the first time. Backers say doing so would call attention to patients who have been receiving similar prescriptions from other doctors.

Database upgrades

But the system can't handle the number of calls Prop. 46 will require, at least until upgrades are completed next summer, the legislative analyst's report said.

"I've been pro-database for many years, and doctors have even added a fee to their licenses to pay for it," said Dr. Michael Rokeach, a San Francisco emergency room physician opposed to the initiative. "Clearly we need it, but we can't use it when it's not ready."

But it's the drug-testing plan that riles doctors the most. Under Prop. 46, doctors affiliated with a hospital would be required to undergo random drug and alcohol testing, as well as testing within 24 hours of a patient suffering an "adverse event" such as a surgical mistake, medication error or anything else causing serious injury or death.

Some of those doctors may have had little to do with the incident, such as a physician who checked on the patient the night before a botched operation, Rokeach said. Prop. 46 backers "want to make medicine safer, but (the initiative) doesn't include testing of other staff" involved in patient care, he said.

In an interview with the Los Angeles Times in December, Court called the drug testing provision "the ultimate sweetener," because focus groups were more interested in that than in raising the malpractice cap.

He's not apologizing for including drug testing in what he said is a wide-ranging, consumer-oriented medical services initiative. A doctor who holds a patient's life in his hands should be subjected to special scrutiny, Court said.

"There's no question we want to do what the public feels is most necessary," he said. "We've got to follow the public's lead, and the public wants this."

Measure trailing

How much the public wants it is a growing question. A recent Field Poll found that support for Prop. 46 had dropped from 58 percent in late June to 34 percent in early September, with 37 percent of those surveyed opposed and 29 percent undecided.

Those poll numbers came after the No on 46 side began its television and radio ad campaign last month.

John Wildermuth is a San Francisco Chronicle staff writer. E-mail: [email protected] Twitter: @jfwildermuth

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