A decades-old fight to raise the cap for some damages in California medical malpractice lawsuits is taking an interesting direction.
Proposition 46 -- which will appear on California's November ballot -- would do a lot more than raise the $250,000 cap on non-economic damages, such as pain and suffering, for successful malpractice suits. It would also require doctors to check a database when prescribing certain drugs like painkillers to prevent abuse, and it would force doctors to be drug tested on a random basis as well as after a patient suffers an “adverse event,” which encompasses a long list of complications including developing a more serious ulcer while in the hospital and death from a medication error.
The malpractice changes and the requirement to consult a prescription drug database aren’t unprecedented moves. About 35 states cap non-economic damages for medical malpractice, according to the National Conference of State Legislatures. Nearly every state has a database tracking prescription information for certain controlled substances, but only a few (including Kentucky, New York, Tennessee and Virginia) require doctors to use them.
A statewide drug testing policy for doctors, though, would be a first in the United States. Medical experts say they know of no such law in the country. That could be both a testament to the power of medical lobbying groups and the level of trust people place in doctors to enforce their own standards of professionalism, argued Arthur Caplan, a bioethicist at New York University.
“There are very few people who would say bus drivers can police themselves,” he said. “I think the public trusts doctors to police troubled health-care providers.”
Some say there’s evidence that doctors should be held to the same standard as professionals with major public-safety responsibilities, such as airline pilots, train operators, fire fighters and police officers -- all of whom are subject to drug testing. A 2013 article in the Journal of the American Medical Association argued at least a third of all physicians experience a time of drug or alcohol impairment on the job during the course of their careers. Given that an estimated one-third of all hospital admissions have a medical error at some point during treatment, there’s reason to suspect physician impairment is a possible culprit, argued Peter Pronovost, who is the director of the Johns Hopkins Armstrong Institute for Patient Safety and Quality.
A 14-year-old report from the Medical Board of California, brought to public attention by the consumer advocates and trial lawyers pushing Prop. 46, argued physicians may be more susceptible to drug use because of their access to prescription drugs and knowledge of them. The board wrote that it’s difficult to get an accurate picture of drug-abuse prevalence, but “many believe” the total percentage of doctors who abuse drugs or alcohol during their lifetime is as high as 18 percent. Doctors who need treatment for substance abuse at any given time, though, is closer to 1 to 2 percent of physicians, the board concluded.
To the American Civil Liberties Union (ACLU), which opposes the drug-testing measure, it’s not that simple. In fact, the group argues the measure is unconstitutional as written. Natasha Minsker, the associate director of the ACLU of Northern California, argues the measure violates constitutional protections and court precedents against random and suspicion-less testing because it would require random testing of any doctor, many of whom aren’t directly in “safety-sensitive” roles. She also argues the broadness of an “adverse event” leaves the law open to violations of suspicion-less testing.
“You could come up with [a drug testing program] focused on professionals engaged in surgery where someone’s life is hanging in the balance. You could do that, but that’s not what this initiative does,” she said.
The American Medical Association, a major lobbying group, referred questions about its position on drug testing to its California chapter, which has declined to say whether it supports the idea, but the group is a major donor in the campaign against Prop. 46. The California Medical Association has, however, raised numerous practical considerations, including a lack of testing for other medical professionals besides doctors and the 12-hour window for testing, which could present challenges for physicians who work across broad swaths of the state.
"Unfortunalty, this ballot measure is three separate provisions thrown into one proposition," said Molly Weedn, a spokeswoman. "Proponents have never come to us to talk about physician drug testing. We'd be willing to have a thoughtful conversation about that, but they've included it here just to sweeten the rest of their proposal, which pulls money out of the health care system and ours directly into pockets of trial attorneys."
The group’s past president has argued the drug-testing aspect of the ballot measure is a cynical effort to get the less-popular malpractice changes passed. The group pushing for the law, Consumer Watchdog, has acknowledged supporters added the drug-testing measure to the ballot initiative because it polled well in focus groups, calling it “the ultimate sweetener.”
But bioethicist Caplan argues the motivations of supporters or any potential flaws in how the measure was crafted shouldn’t deter voters in California from approving it.
“If I were in California, I’d hold my nose and vote for it and try to figure out some of the regulatory issues,” he said. “There’s time to fine-tune it. It might not make precise sense as it’s written in the bill, but there’s enough adverse events and near-misses and easy availability of drugs that you’d absolutely want to test this population.”
With lopsided spending and unfavorable recent polling, that might not happen. Opponents have outraised supporters by nearly 6 to 1, according to Ballotpedia, and only 34 percent of likely voters supported Prop. 46 in a recent poll. Based on the track record of 200 previous ballot measures, “once the ‘no’ side starts to get ahead of the ‘yes’ side, the chances of passage are really quite low,” pollster Mark DiCamillo told the San Jose Mercury News.