Voters Reject Proposition 46

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LOS ANGELES — Proposition 46, a wide-ranging initiative that included raising the 1975 limit on pain and suffering damages in medical malpractice lawsuits, was defeated today.

Proposition 46 author Bob Pack said the campaign on behalf of the initiative "opened the eyes of all Californians about patient safety," but "faced deep-pocketed opposition from the insurance industry."

"At least in this election, insurance industry profits trumped patient safety," Pack said.

Pack, a technology executive, authored the initiative in response to the 2003 deaths of his 10-year-old son, Troy, and 7-year-old daughter, Alana, who were struck by a car driven by a drugged driver as they were walking on a sidewalk in Danville with their mother. The crash also killed Pack's unborn twins.

Proposition 46 would have also required random drug and alcohol testing of doctors, and mandated health care practitioners consult the state prescription drug history database before prescribing certain controlled substances.

Supporters said it would have detected and deterred medical negligence, over-prescribing of prescription drugs and drug and alcohol abuse by doctors and promoted justice for people who don't have an income — including retirees, children and stay-at-home parents — who are victims of medical malpractice.

Opponents said Proposition 46 would have caused many doctors and other medical care professionals to quit their practices or move to states with lower medical malpractice insurance premiums and threatened the public's privacy by requiring a massive expansion of the use of the state's personal prescription drug
database, known as CURES.

The measure dubbed by backers the "Troy and Alana Pack Patient Safety Act" would have adjusted for inflation the $250,000 limit for pain and suffering damages in medical negligence lawsuits, which has been law since 1975.

If the $250,000 limit had been adjusted for inflation since 1975, it would now be $1,106,092.01, according to Bureau of Labor Statistics figures.

"If a child dies because of medical negligence, it's almost impossible to get an attorney," because attorney's fees and the cost of expert witnesses make it economically unattractive, said Jamie Court, the president and chairman of the board of Consumer Watchdog, the Santa Monica-based consumer advocate that conducted the campaign on behalf of Proposition 46.

Pack "wanted to change that so victims had access to justice," Court said.

Proposition 46 would have also required hospitals to conduct random drug and alcohol testing of doctors who practice there; doctors to report other physicians who appear to be impaired by drugs and alcohol on duty; and reporting of positive tests to the California Medical Board.

Drug-testing of doctors was considered by the inspector general of the U.S. Department of Health and Human Services and "we'd been looking at it as part of a patient safety measure," Court said.

"When we were talking to the public about eight to 10 ideas we had, this proved to be among the most popular," Court said. "Most people did not realize doctors were not drug-tested and suspended when they tested positive."

Proposition 46 would have also required health care practitioners to consult the state prescription drug history database before certain controlled substances are prescribed to a patient for the first time. Pack created the database.

"Bob's personal tragedy involved a doctor who over-prescribed to a drug addict with three DUIs," Court said.

The woman was prescribed "thousands of pills, took them, fell asleep at the wheel, swerved off the road, killed his kids," Court said.

Passage of Proposition 46 would have resulted in higher malpractice costs for state and local governments at least in the low tens of millions of dollars, potentially ranging to more than $100 million annually, according to an analysis prepared by the Legislative Analyst's Office and Department of Finance.

The analysis also found the potential state and local government costs associated with changes in the amount and types of health care services potentially range from relatively minor to hundreds of millions of dollars

The requirement to check CURES and test physicians for alcohol and drugs would likely result in annual savings to state and local governments. The amount of annual savings is highly uncertain, but potentially significant, according to the analysis.

Proposition 46 contained multiple elements because "if you're doing a patient safety ballot measure and don't have a lot of money, you got to put them all in one," because of the approximately $2 million cost to qualify an initiative, Court told City News Service.

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