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No on Prop 46



Photo Courtesy of Tribune News Service

Photo Courtesy of Tribune News Service

Let’s put it this way, no one wants a professional healthcare worker to be drunk or high off drugs while on their shift. Also, in today’s society financial compensation for wrongdoings is commonplace, because money can somehow fix everything.

Proposition 46 aims to address the problems of medical malpractice by doing three things, first it would establish a law where random drug tests are required to be administered to health care workers.

Second, it would raise the cap for monetary compensation acquired from a successful medical malpractice lawsuit. Originally the cap was set at $250,000 but this proposition will raise the cap to $1.1 million, and that cap is set to raise with inflation.

Third it would require doctors and pharmacists to check the Controlled Substance Utilization Review and Evaluation System (CURES), a state database that keeps track of controlled substance drugs that were dispensed in California, before prescribing abuse-prone drugs to a patient for the first time. Essentially, this part of the proposition would cover a glaring loophole in CURES, while prescriptions of such nature are required to be reported to CURES, virtually no one checks the database before doling out more of these prescriptions. Making a requirement to check CURES could prevent those who prone to abusing drugs from getting a prescription again.

Sounds all good and dandy right? Well, this is why you should vote no on the proposition. The centerpiece of this proposition is not just the required random drug tests, but raising the cap of medical malpractice compensation to $1.1 million.

But let’s begin with the random drug testing part of the proposition. It’s quite understandable that we want our health care workers to be sober while helping us (and everyone else we interact with). However, the problem lies in how often the drug testing will happen. Health care workers can be tested even when they are off duty.

Even the Federal Aviation Administration (FAA) does not test their pilots for drugs and alcohol use when they are off-duty. Proposition 46 would effectively create for the first time ever, a statewide law that would require drug and alcohol testing for a single profession even when they are on off duty — vacation days included.

This is a massive invasion of privacy and extremely anal micromanagement. It wouldn’t surprise me if many health care workers would feel violated and alienated.

On to the bigger piece, the raising of medical malpractice lawsuits to $1.1 million from $250,000. That’s quadruple the asking price, and anyone with a sense of economics would know that’s a rip-off. The argument for this raise is to encourage less malpractices and more careful medical treatment and judgement.

That’s a fine goal. However, with a higher lawsuit comes higher insurance rates, for medical facilities, doctors and yes, the public. How so?

Medical facilities and doctors would be required to buy higher levels of insurance (meaning more money) in the case of a medical failure. The cost of transitioning to a higher level of insurance will vary amongst medical facilities and doctors. Regardless those costs will hurt both patients and medical practitioners, especially medical facilities helping low-income Californians.

It is unclear whether or not medical malpractice lawsuits will increase if this measure were to pass. However, the Legislative Analyst Office (LAO) estimates that the fiscal impact of this proposition would cost state and local government health care tens to hundreds of millions annually to adjust to the sudden rise in the lawsuit cap.

This could potentially force medical facilities with not as much money to cut back on serving low-income residents and the uninsured poor in order to save money. Riskier practices such as maternity care could be cut back as well in order to offset the cost of a higher insurance premium.

Care providers would change their practices in order to slim their chances of getting slammed with a lawsuit. It is unclear whether this could potentially hurt medical services received by patients. However, the threat of an expensive lawsuit creates a tight-rope for both patients and doctors to walk on.

The only thing I could agree on is the whole CURES database situation. It could potentially reduce the number of cases involving abuse of prescribed medication. However, even then this has its own problems, as it then requires the 170,000 unregistered medical practitioners to register with CURES, and that would take anywhere between weeks to months. During this period, these people would be exposed to penalties during the process of signing up.

I can’t shake the feeling that certain insurance companies and lawyers are really pushing for this proposition to pass. This proposition would rake in the cash for interested parties. I don’t think we need anymore added pressures on an already broken healthcare system that needs a different type of help.


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  1. It will be interesting to see how the public votes on this and how the country will respond to it.


  2. JoePublicSafety Oct 29, 2014

    Please reconsider your position on Prop 46. These are big profit insurance arguments against P46 and are not in the public’s interest.

    Prop 46 is not about trial lawyers vs doctors; it’s about patient and public safety at a modest reduction in profits to malpractice insurance companies that make billions. And it’s about public justice which is currently being denied to you.

    The effects of the 1975 MICRA law 250K cap have now reduced the value of your jobless family members(children, retirees, ect) to essentially zero as you can not obtain a lawyer in any wrongful death malpractice case for them.

    Hundreds of thousands of Americans die yearly as the result of preventable medical negligence. Common hospital malpractice errors include: incorrect medication/dosage, surgical mistakes, preventable infections, diagnosis failures, birth delivery mistakes, anesthesia errors and under/over treatment. Americans are given twice the drugs Europeans are and we are not any healthier or live any longer for it(Vioxx resulted in 60K deaths).

    All Californian families are now denied any justice and accountability when a family member without job income dies as a result of medical errors due to the 1975 MICRA law which malpractice insurance companies backed and that capped the non-economic “pain and suffering” award to 250K with no adjustment for inflation. Except in rare punitive damage cases this is the only award available.

    Malpractice attorneys will not take these wrongful death cases because the MICRA law also limits the attorney award to about 30%(BPC 6146) or about $75K of any maximum $250K award and attorney and medical expert costs in a case will quickly exceed $75K, search on “caps harm California” and “protectconsumerjustice org how micra came to be”.

    Governor Brown who signed MICRA into law said 17 years later that MICRA did not lower health care costs and only enriched insurers and placed negligent or incompetent physicians outside the reach of judicial accountability. Ralph Nader has reminded Governor Brown’s of this earlier statement and has asked him to support Prop 46. Erin Brockovich and patient safety organizations support P46.

    The MICRA cap and low non-economic damage caps in many other states have enabled malpractice insurance companies to earn billions in profits by essentially eliminating their monetary liability in these cases. It’s no wonder malpractice insurance companies have spent tens of millions to defeat Prop 46 which doesn’t even eliminate the cap, only adjusts it for inflation.

    California malpractice insurance companies profit an incredible 70 cents for every dollar collected in malpractice premiums which leaves plenty of room for an increase in malpractice payouts without a rate increase to doctors.

    22 other states do not have a non-economic damage cap and medical insurance rates are not any higher in those states nor are there shortages of physicians.

    Since 1988 Prop 103 has regulated doctors malpractice insurance premiums and can not be increased unless justified with the Insurance Commissioner.

    California drivers do not have a law that eliminates their liability if they kill a jobless person in a car accident and neither should negligent medical professionals and their insurance companies. When there isn’t accountability there isn’t a deterrent to avoid repeating negligence.

    Prop 46 also includes testing doctors for drug and alcohol which is done in the transportation industry, the military and in other public safety related occupations. Certainly it is in the public’s interest for doctors to be thinking clearly when they have our lives in their hands.

    Overprescribing of prescription narcotics is now a national epidemic. The Centers for Disease Control cited 475,000 emergency room visits and 36,000 deaths from prescription narcotic overdoses in a recent year, at a price tag of $72 billion in avoidable health care expenditures.

    Prop 46 will also require physicians to check the state’s existing and secure DOJ CURES prescription drug database before prescribing narcotics and other addictive drugs to curb doctor-shopping drug abusers, to prevent over-dose deaths and to reduce harmful behavior and health care costs.

    PLEASE VOTE YES ON PROPOSITION 46 for Public Safety and Patient Justice.

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