Endorsement: Proposition 46 is no cure-all

08/31/2014 12:00 AM

08/29/2014 2:45 PM

Physicians should not get drunk or stoned, especially before operating on patients.

They ought to make sure their patients need prescriptions for ailments, not to feed addictions. And policymakers should consider updating the 1975 law that capped damages in medical malpractice cases.

But the cure to all of the above is not Proposition 46, an initiative on the Nov. 4 ballot that would disrupt health care in California, and has reignited the war between physicians and plaintiffs’ lawyers.

Consumer Watchdog and allies including plaintiffs’ lawyers have raised less than $5 million to support Proposition 46. Physicians and their allies, including medical malpractice insurance companies, have amassed $55 million to kill it.

Aware that some voters distrust lawyers, Consumer Watchdog added sweeteners to the initiative to obscure the initiative’s main point, that being to open the way for bigger awards in medical malpractice lawsuits.

One enticement would require drug testing of doctors, which evidently polls well. In our view, however, the cynicism implicit in the drug testing provision is reason enough to oppose Proposition 46.

If doctors are drug-addled, other doctors and nurses have a duty to report them. If doctors make horrible mistakes during surgery, there might be cause for testing. But Proposition 46 would impose the insulting requirement of random testing on all doctors who have hospital privileges, and require that the Medical Board of California discipline any doctors whose tests are dirty.

In its propaganda, Consumer Watchdog jokes about privacy concerns in a lowest-common-denominator video showing that other professionals must provide urine samples. Simply because laws allow for testing of some workers doesn’t mean physicians’ privacy should be trampled.

Doctors and their lobbyists aren’t angels. They should do more to ensure that the Medical Board takes a hard line on miscreant doctors. The board long has had a reputation for lackluster oversight. But that’s a matter for legislators to focus on, not something to be bundled into an initiative that would open the way for more malpractice lawsuits.

A second sweetener would compel doctors to check a database called the Controlled Substances Utilization Review and Evaluation System, or CURES, before issuing certain prescriptions. CURES is intended to stop drug-addicted patients from doctor shopping to get their fixes.

The initiative’s out-front spokesman, Bob Pack, advocates that doctors be required to check the database, for good reason. He tells the heart-wrenching story of how his two young children, Troy and Alana, were struck and killed in 2003 by a hit-and-run driver who was high on prescription drugs.

If the database had been operational, the terrible accident that claimed the lives of his children might not have happened. Unfortunately, CURES, like so many computer systems, isn’t working as promised. Doctors, again, bear some responsibility for its failings.

The database might be operational if lobbyists who represent doctors and drugmakers were half as aggressive fighting prescription drug abuse as they are fighting critics of California’s malpractice law, the true focus of Proposition 46.

The Medical Injury Compensation Reform Act of 1975 caps noneconomic damages such as pain and suffering in medical malpractice lawsuits at $250,000, and limits fees that plaintiffs’ attorneys can collect.

Proposition 46 would more than quadruple the cap on pain and suffering by raising it to $1.1 million, and providing annual cost of living adjustments.

There are powerful arguments for adjusting the 1975 law. Malpractice damages often are based on lost wages. Since children and elderly people have no income, they have little legal recourse if they become malpractice victims. The one-sided Proposition 46, however, is not the solution.

If money rules as it often does in politics, doctors and their allies will defeat Proposition 46 on Nov. 4. The initiative ought to fail.

The issues it raises will remain. There will, however, be a difference. The doctors’ lobby will feel emboldened and be even less amenable to legislative compromise. That would be unfortunate.

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