California Won't Drug Test Doctors

Voters rejected a ballot measure that would have made California the first state to drug test doctors and raised the cap on some medical malpractice damages for the first time since the 1970s.
by | November 5, 2014
Surgeons and anesthesiologists (the highest-paid professions last year) performing a facial surgery at Seattle Children's Hospital.
Surgeons and anesthesiologists (the highest-paid professions last year) performing a facial surgery at Seattle Children's Hospital. Thomas James Hurst/Seattle Times/MCT

California voters have soundly rejected a ballot measure that would have raised limits on some medical malpractice damages and created a first-of-its-kind requirement to drug test doctors.

Proposition 46 stepped out of the gate with wide popularity, but the support of voters, newspaper editorial boards and others waned as the race progressed. Opponents raised a staggering $58 million, about six times what proponents brought in, but the measure also took criticism as overly broad and poorly crafted. The measure ultimately lost with 67 percent of the electorate against it.

The measure would have raised California’s cap on non-economic damages from medical malpractice suits from $250,000 to $1.1 million. “Non-economic” damages commonly include payments for pain and suffering. But the measure also would’ve required doctors to consult a drug-history database before prescribing certain medications to reduce abuse, and it would’ve required mandatory drug testing of all doctors, an unprecedented proposal that drew condemnation from civil rights groups.

Critics argued the advocacy group backing the measure, Consumer Watchdog, placed the additional provisions on the ballot to make the malpractice portion more palatable to voters. The group’s leader acknowledged as much in an interview with the Los Angeles Times, calling the drug-testing provision a “sweetener” that polled well with focus groups.

Still, Consumer Watchdog is far from the first group making the case for drug testing of doctors.  Peter Pronovost, the director of Johns Hopkins’ Armstrong Institute for Patient Safety and Quality, wrote in a 2013 article in the Journal of the American Medical Association that at least a third of all physicians experience a time of drug or alcohol impairment on the job during the course of their careers. Consumer Watchdog additionally found figures on drug and alcohol abuse among California doctors and argued they should be held to the same standard as other professionals with major public-safety responsibilities.

The American Civil Liberties Union and California’s biggest doctor lobby didn’t completely dismiss the idea of drug testing doctors, but they argued the measure was unconstitutional as written, overly broad and unworkable. It remains to be seen whether groups in California and outside the state will pick up on the drug testing idea in legislatures this year, but with the kind of national exposure California generates, the policy is certainly more visible now than it was before.

There aren’t likely to be national implications for medical malpractice policies, said David Hyman, the director of the University of Illinois’ Epstein Program in Health Law and Policy. California and a wave of other states began capping non-economic damages in malpractice suits in the 1970s and 1980s. Today, some 35 states cap non-economic damages, according to the National Conference of State Legislatures. But unlike California, many of those states regularly increase their caps by the level of inflation or a pre-determined schedule.

Critics of malpractice damages have long argued they fuel health spending as doctors pass on those costs to consumers, but there’s also lots of research arguing caps have little impact on overall costs and produce little in savings for consumers. Still, the trend in the last decade or so has been toward enacting caps and overhauling malpractice laws in favor of stricter limits.

People opposed to caps have had more success in the last decade through the legal system, as state supreme courts have declared limits unconstitutional in Alabama, Georgia, Illinois, and, earlier this year, Florida. Courts had already struck down limits in Oregon, Washington and New Hampshire.

But the challenges appearing in state court systems stemmed from the latest series of malpractice overhauls, from 2003 to 2005, and there isn’t likely to be anything resembling a wave, Hyman said.

“I don’t expect a tidal wave of challenges, partly because the states that have adopted caps are the states where it’s politically congenial to have caps,” he said. “The late additions have been the one where it was a challenge getting [a cap] in the first place and the terrain is hostile in the first place.”