Legislators considered scrapping the Medical Board entirely, then settled for a less punitive approach. But concern about how the state agency operates is once again back in the news, and the focus is once again on its leaders’ attitude about painkillers. The Los Angeles Times has details:

An Orange County doctor accused of gross negligence in the care of two patients who fatally overdosed on drugs he prescribed has been placed on probation by the Medical Board of California.

 

Van H. Vu, who owns a busy pain clinic in Huntington Beach, agreed not to contest the board’s accusation, to take classes in prescribing and record keeping and to submit to an outside practice monitor for five years. In exchange, the board allowed Vu to keep his license and continue prescribing potent painkillers.

This has rekindled the complaints made in 2013 that the Medical Board is too sympathetic toward doctors accused of wrongdoing and not concerned enough about public safety.

Doctor linked to more than a dozen overdose deaths

A 2012 investigation of Vu by the Times showed a pattern of practice that dumbfounded independent medical authorities:

Avoids ‘uncertainty of a trial’

An official with the American Association of Pain Medicine condemned Vu in 2012, saying his prescription practices were grossly inappropriate and reflected an ignorance of the danger of such drugs as Oxycodone.

It’s not clear how much weight such observations carried with the Medical Board in deciding Vu’s punishment earlier this month. But the agency’s spokeswoman defended its light sanctions as serving the public’s interest “by avoiding the expense and uncertainty of a trial.”

“It makes the resolution faster,” spokeswoman Cassandra Hockenson told the Times. “We still have the upper hand. He will be watched very, very closely. … If he deviates one iota from these probationary requirements, revocation is back on the table.”

The Vu case could rekindle interest in the Legislature in making changes to the Medical Board. But it is uncertain who would lead such a campaign. The two state senators who led the push for the 2013 reform measure are no longer in Sacramento. Curren Price was elected to the Los Angeles City Council and Ted Lieu was elected to Congress.

The Vu case could spur yet another push to increase the state’s 30-year-old cap of $250,000 on non-economic damages in medical malpractice cases.

California voters, however, have backed the cap — most recently last November, when state voters rejected Proposition 46, which would have made big changes in the 1975 law.

California’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.

Hearing

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.”

Counties

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.

ACLU

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.

Commercials included several anti-Proposition 46 ads. One showed a kindly, middle-aged doctor in a white lab coat saying how much it would increase medical costs. This is a typical doctors vs. trial lawyers battle. There were no ads last night from the trial lawyers.

It looks like the initiative is in trouble, according to a USC poll. The Los Angeles Times reported:

Among likely voters, 61% favored the measure, or leaned in that direction; 29% were opposed.

But that approval slid to 47% when respondents were told of high potential costs to the state — as well as possible savings — and opposition rose to 39%.

Backing eroded further when those surveyed heard both sides’ main campaign arguments. Support fell to 37%, with 50% opposed.

The initiative’s main part would increase the cap on malpractice damages, which has been $250,000 since 1975, to $1 million. The current limit has been one of the few sensible curbs on excess litigation in a state known to have too many lawsuits. But according to the U.S. Bureau of Labor Statistics’ Inflation Calculator, $250,000 in 1975 is equal to $1.1 million today.

So Prop. 46’s increase in limits is reasonable. Except the proposition increases it too fast. They should have tried something smaller at first, say to $400,000.

Wording

Then the initiative, in typical California fashion, lards the wording with extra stuff supposedly to make it more attractive to voters:

• Require drug and alcohol testing of doctors and reporting of positive tests to the California Medical Board.
• Require the California Medical Board to suspend doctors pending investigation of positive tests and take disciplinary action if the doctor was found impaired while on duty.
• Require health care practitioners to report any doctor suspected of drug or alcohol impairment or medical negligence.
• Require health care practitioners to consult the state prescription drug history database before prescribing certain controlled substances.

It’s just more harassment of your doctor, who’s already suffering under a mountain of paperwork from Medicare, Medi-Cal, Covered California, etc.

Of course, we don’t want doctors drunk or high on the job. But this would be an intrusive attack on their integrity.

Maybe we should make the same requirements for trial lawyers.

Just kidding, counselors! But don’t be surprised if there’s retaliation from the sawbones.