Proposition 46: “And, Oh, By the Way…”

Yosemite Falls - photo by JoAnn Sturman

Scott Sturman, M.D.

The euphemistically entitled Troy and Alana Pack Patient Safety Act of 2014 appears as Proposition 46 on the California ballot in November 2014.  Purportedly, it will save patients lives by compelling physicians to submit to random drug screening and to check electronic data bases prior to prescribing controlled substances.  As if he were making final arguments to a jury in a personal injury case, the proposition’s author Bob Pack contends doctors’ mistakes kill up to 440,000 Americans a year, or as he puts it, “as many as two fully loaded 747s crashing everyday.”  He goes on to conclude that many of these deaths are due to impaired physicians, who could be identified and culled from the system by mandatory, random drug screening.  The presentation is set to music to maximize the dramatic effect, and at its conclusion Mr. Pack makes the pitch to increase pain and suffering awards for medical malpractice from its current $250,000 to $1,000,000 just because the current arrangement “isn’t right.”  Prop 46 Promo by Bob Pack

No one disputes the grief suffered by the Pack family, but in these incidences it is all too easy to cloud the real problem and its solution by resorting to emotional arguments.  For instance, are we to believe 0.15% of the entire United States population dies each year due to doctors’ errors?  What does the phrase “contribute to death” actually mean?  Two acetaminophen pills rather than the intended one, and a patient with a myriad of problems dies two days later?  When reviewing independent  sources to corroborate the scope of the problem, most reports ranged from 98,000 to 200,000 deaths per year.  Unacceptably high to be sure, but one half of a fully loaded 747 crashing everyday does not have the gravity or shock effect of the video’s claim.  Furthermore, the audience is lead to believe that the preponderance of these deaths are due to actions of impaired physicians, but, of course, this is no more than conjecture.  No one really knows what fraction of a 747 crashes each day due to physician negligence stemming from alcohol or drug abuse.

If passed, MICRA legislation will be gutted, so trial attorneys have profound motivation to place their considerable political heft and money behind the measure.  This is clearly the least popular portion of the proposition, and certainly the reason it is addressed in the offhand, “and, oh, by the way” fashion.  Not surprisingly, there is no mention of the increased cost to patients due to higher malpractice insurance premiums or the unwillingness of physicians to continue practicing in a more hostile legal environment.

The proposition’s authors avoid an obvious solution, which would lay the groundwork for a suitable compromise:  any changes must include reasonable tort reform which protects doctors from frivolous law suits and places substantial financial or legal penalties on attorneys who engage in these practices.  These changes would reduce the cost of defensive medicine and hold the legal community responsible for disreputable behavior.

As it is, the tone of the proposition is accusatory and holds doctors in contempt.  It represents another lost opportunity to address a serious issue in a systematic, even handed way.  Checking a computerized data bank before ordering controlled substances has its merits, as long a the data source secure.  Requiring physicians to undergo randomized drug testing is not.  The stipulation was added to the Proposition 46 because it is popular with the public and increases the chances of passage.  Physicians are not pilots or policemen, and most are not union members.  For the vast majority of physicians who do not abuse drugs or alcohol and took an oath to care for their patients, this mandate is an affront to their profession.

From time to time I hear colleagues conceding that pain and suffering limits should be adjusted upward to account for inflation.  This also is a bad idea.  History should teach us the current proposed increase is only an interim step for trial lawyers, who will not rest until there are no limits on pain and suffering.  Despite the proposition’s cited purpose, a few facts are certain:  It certainly will make medical care more expensive and less accessible and trial attorneys more wealthy than ever but not yield the intended safety dividends.  

        Potala in Lhasa - photo by JoAnn Sturman