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Prop. 46: Malpractice Awards, Doctor Shopping, and ... Drug Tests?

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By Mark Wilson, Esq. on September 29, 2014 1:17 PM

Welcome to the first in a series about this year's California ballot propositions. Hopefully we can help sort out the wheat from the chaff when it comes to claims about what these propositions do and don't do.

Rudely interrupting my "Law & Order" marathons are commercials for Proposition 46, which I'm told was written by "trial lawyers" seeking more money. Those grubby trial lawyers! They're apparently behind all bad things, according to the Chamber of Commerce. But if there's one thing that law school -- and those "Encyclopedia Brown" novels -- taught me, it's to examine the evidence. And never trust Bugs Meany.

What Is Prop. 46?

Prop. 46 does two sort-of related things and one completely unrelated thing. First, it moves the statutory cap on pain and suffering damages from malpractice lawsuits from $250,000 to $1.1 million, then indexes the damages cap to inflation.

Second, it requires physicians who prescribe controlled substances to check the state's CURES database first. CURES (which stands for Controlled Substance Utilization Review and Evaluation System) keeps track of patients' controlled substance prescriptions and lets doctors know if a patient has been shopping around for prescription narcotics.

Third, and most controversially, Prop. 46 mandates random drug testing of physicians, at their expense. It also requires drug testing after an "adverse" event -- basically, whenever something goes wrong and a patient is injured or dies.

Why Prop. 46?

The initiative is named for Troy and Alana Pack, but only two of these three parts have anything to do with them. The Packs were the children of Bob and Carmen Pack; Bob used to be an AOL executive and founded NetZero. The Pack kids were killed in a car accident caused by a woman who was under the influence of prescription medication; it was later revealed that she had been prescribed hundreds of pills by different doctors. Bob Pack used his tech industry know-how to create the CURES database in 2009, but its use isn't mandatory.

Some Questionable Claims

Opponents of Prop. 46 claim that raising the ceiling on pain and suffering damages would cause med-mal awards to go up, raising medical malpractice insurance rates, and thus health insurance costs for everyone. But basically everyone who's made an empirical study of the question has concluded that malpractice lawsuit costs are an incredibly small component of health care spending. A study at Northwestern that looked at extant tort reform statutes in 30 states found that they reduced health care costs "by 2.3% at most."

Still, why randomly drug test physicians? According to The New York Times, this part of the proposition came from focus groups and an attempt to head off opponents' Jeremiahads about skyrocketing medical costs: "The enthusiasm voiced in the focus group, strategists for the campaign said, suggested that the clearly popular idea could overcome medical industry advertisements warning that raising malpractice award limits would push up insurance rates and costs to local government."

Thus it appears that the random drug testing component was a cherry on top, an inducement to get people to vote. For those who don't find themselves on the same side as the Chamber of Commerce, this could be one of those rare times.

Prop. 46 could have been submitted without the drug testing component. For those in favor of a mandatory CURES check and higher damages caps, that could make it fatally flawed.

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