Hearings dissect Prop. 46 on medical malpractice

Hearings dissect Prop. 46 on medical malpractice


Marcus welbyCalifornia’s state and local governments could be hit with an increase of tens of millions to several hundred million dollars in annual health care costs if Proposition 46 passes on Nov. 4. That was the warning from California legislative analyst Ross Brown at a joint legislative committee informational hearing on the initiative on Monday.

The proposition also would raise costs for private health care providers, Brown said. But he did not estimate a dollar amount. Several providers warned the costs would be significant enough to force them to reduce medical services, particularly for the state’s poorest residents.

The main cost driver in the initiative is the raising of the $250,000 cap on noneconomic damages for medical malpractice to match inflation. The cap was implemented by the Medical Injury Compensation Reform Act in 1975. That means the cap would increase to about $1.1 million today, then rise even higher annually depending on future inflation.

Malpractice costs currently represent about 2 percent of total annual health care spending in California. A 440 percent increase in the damages cap would force companies with health care either to pay increased premiums to insurance companies or pay more out-of-pocket if they are self-insured.

The two other major provisions of Prop. 46 – requiring providers to check the state’s prescription drug database and mandating drug testing of physicians – could result in offsetting costs and savings, according to Brown. For example, there would be additional costs for drug testing, but it might result in fewer instances of medical malpractice.


The first half of the three-hour hearing focused on emotional testimony from the proposition’s author, Bob Pack, and others whose family members have been killed by medical malpractice.

Pack said his two children were killed and his wife injured when they were hit by a driver under the influence of prescription narcotics, mainly Vicodin. The woman’s drugs were provided by six doctors, none of whom was aware other doctors were writing prescriptions for the same woman.

To prevent that kind of “doctor shopping” by drug addicts, Pack lobbied the state Legislature to create the Controlled Substance Utilization Review and Evaluation System database. But only about 30,000 doctors and pharmacists out of a total 200,000 in California are using it. Prop. 46 would require the remaining 170,000 to consult the database before prescribing or dispensing drugs for first-time users.

Gary Heller told the committee his wife Linda developed chronic neck pain after being rear-ended in an auto accident. A doctor prescribed a dangerous level of morphine sulfate, which led to her death after suffering for 32 days in the hospital.

The specialist subsequently was arrested for several DUIs, was in treatment programs and relapsed, Heller said.

“If Proposition 46 had been in, in my opinion, my wife’s doctor would have been caught before he negligently prescribed the drugs that caused her respiratory failure,” he said. “I believe the outcome was totally preventable. And that is something that I will have to live with for the rest of my life.”

Lethal meds

Tammy Smick said her 20-year-old son Alex was prescribed a lethal combination of medications in an Orange County hospital. Ironically, Alex had checked himself into the same hospital to safely detox off prescription medications he had become addicted to after a back injury.

“Alex was one of up to 440,000 Americans who are killed every year because of preventable medical error,” she said. “But to me Alex is not merely a statistic, he’s my son. I am not fighting for money. I am fighting for justice and accountability. And in memory of my beloved son, I am fighting for change so that no others suffer the same devastation.”

Michelle Monserratt-Ramos’s fiancée died after a surgical mistake resulted in infection. His doctor has been arrested for possession of crack cocaine, she said, but is still practicing medicine. She could not get a lawyer to take the case due to the low cap on non-economic damages.

“They told us, ‘You absolutely have a case, but because of the [cap] we are sorry, but it would not be a good business decision to take Lloyd’s case,’” she said. “Believe me, you don’t ever want to hear that [your loved one’s] life or their death is a bad business decision. All any victim or their family wants is answers and to be able to hold a negligent doctor accountable in order to save someone else’s life.”


The opposition to Prop. 46 was led by Farrah McDaid Ting, representing the California State Association of Counties. California’s 58 counties operate public hospitals and clinics that serve more than 3 million people annually, she said, providing a health care safety net for California’s poorest residents.

“Proposition 46 will increase costs for counties,” she said. “All of these services could be negatively affected if Proposition 46 became law. Especially for counties that self-insure, the increase in medical malpractice claims and costs would be devastating to them. It would come directly out of county general fund dollars.

“We’re also worried about the administrative nightmares that could happen under Proposition 46. We’re concerned about the potential for increased numbers of suits and the amount of staff time that those would require. We are working to continue providing critical health services, and we worry that Proposition 46 would reduce county resources at a time when they are needed the most.”

Ruth Haskins, a Sacramento OB-GYN, said the initiative will drive up health care costs, hurting the poor.

“Many of the patients that I treat come to me from the emergency room referrals and are on Medi-Cal,” she said. “They simply wouldn’t be able to afford the exorbitant increased health care costs that Proposition 46 would yield. I worry that that would mean that they wouldn’t get the necessary prenatal care to ensure safe, low-risk deliveries for healthy babies.

“If Prop. 46 were to pass, OB-GYNs like me, along with other high-risk specialists, would be forced to reduce our services or close their doors altogether. Proponents may say this measure is about safety. But the truth is Prop. 46 doesn’t do anything to improve safety or quality of health care in California. In fact, it would do just the opposite.”

Rising costs

Cathy Frey, CEO of the Central Valley Health Network, also warned that health centers and community clinics “may have to look at what services they can continue providing.”

Cesar Diaz, representing the State Building and Construction Trades Council, said his union’s 400,000 members and their families are already having to pay extra for the same level of health care. He’s concerned that Prop. 46 will force them to pay even more.

“We see Prop. 46 as being a venue for increased legal costs and basically attorneys having more access to such financing,” he said.


American Civil Liberties Union representative Michael Risher said the ACLU is opposed to the physician drug testing provision in the measure.

“It’s an unwarranted invasion of the privacy that our California Constitution specifically protects,” he said. “It’s unlikely to make us any safer.

“And it’s particularly galling that this provision was apparently thrown in not because people cared about drug testing – I think there’s a recognition that’s something more properly addressed by this Legislature – but because it apparently did well in focus groups and was thrown in as a sweetener, despite the fact that California’s Constitution does have a single-subject rule for initiatives.”

The “single-subject rule” exists to ensure initiatives stay on topic and don’t become grab bags of different changes in the law. However, a study by the University of California found court enforcement of the rule is not rigorous.

Drug testing

Sen. Hannah-Beth Jackson, D-Santa Barbara, said she’s a big fan of the ACLU, but strongly disagreed with its opposition to physician drug testing.

“As someone who’s had more than my share of surgery, I want to make sure that my physician is not under the influence of drugs or alcohol while performing that surgery,” she said. “We require school bus drivers … to undergo some level of drug testing.

“As a supporter of ACLU I’m a tad surprised about the extent of your indignation about the notion of wanting to make sure that our doctors, particularly in hospitals where life and death decisions are made, are actually equipped mentally to perform those procedures.”

Risher responded, “It’s not that any of us wants to be operated on by a physician who’s under the influence. The data on random, suspicionless drug testing tend to show very little deterrent effect and very little enforcement effect with anything aside from marijuana, because that stays in the system longer than drugs like alcohol, cocaine and heroin.”

Jackson also argued it makes sense to increase the malpractice damages cap as a deterrent punishment for what she called the 5 percent of physicians who are guilty of 95 percent of medical malpractice.

But Assemblyman Richard Pan, D-Sacramento, who is also a pediatrician at a Sacramento clinic, disagreed.

“I do take issue with the statement that the only thing that will get doctors and hospitals to pay attention to quality is financial,” he said. “The research I’ve seen shows very little correlation between medical liability suits and quality improvement. In fact, most of the patient safety and quality literature talks about systems change, transforming the health care delivery.”

Frey agreed, saying that numerous laws and oversight regulators already provide safeguards for patients.

“Community clinics and health centers, particularly those that are federally funded, are under an enormous amount of scrutiny,” she said. “They report to the federal government, they report to the state of California. They report, report, report. And quality is our number one issue.”

A Field poll conducted in the second half of August showed support for Prop. 46 had dropped to just 34 percent (with 37 percent opposed and 29 percent undecided) from the 58 percent support (30 percent opposed, 12 percent undecided) it had received in late June/early July. The drop in support followed an increased campaign of TV ads by the anti-46 side.

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