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By Tom Cushing

Prop 46: Two Bridges Too Far

Uploaded: Oct 15, 2014

The insider's view of Prop writing must present a tantalizing panorama of options. There has to be a temptation to glom several, directionally-related concepts together, perhaps the better to attract funding allies for promotion. The problem such bundling creates is that the Proposition becomes only as strong as its weakest link. Pre-packaging magnifies the opposition, since voters only need to dislike any one of several provisions to pull that No lever. The burden is always on the advocate to make the case for its proposal; I've reluctantly concluded that these sponsors haven't done so.

Prop 46 includes three disparate concepts, all of which ostensibly reduce the incidence or consequences of medical errors. Those mistakes are a serious problem ? one recent study concludes that they are the third-leading cause of death in the USA. Prop 46 purports to address parts of the problem, as follows:

1 -- update and index the 1975 MICRA limit on non-economic damages in medical-malpractice suits, and

2 ? require random and 'for-cause' drug-testing of doctors, as a safety precaution, and

3 -- expand and require doctors to use the state-sponsored CURES database, to avoid writing duplicate prescriptions for dangerous drugs.

Let's look at each, in order.

MICRA was passed in an era of concern over runaway jury awards, with medmal cases being the prime examples (although higher health care costs were a worry, the real crisis was the possibility of docs leaving the practice or the state, due to burgeoning malpractice insurance premiums). Although economic damages (e.g., lost income, medical expenses, lost opportunities) and punitive damages were left untouched, so-called non-economic losses (e.g., pain-and-suffering, lost consortium, emotional distress) were capped at $250,000. It also limited plaintiff's attorneys fee percentages at various stages of claim resolution. By many reports, MICRA succeeded in stemming any tide of MD exodus.

That selective limit on damages, which does not apply in other professional malpractice, personal injury or similar claims of civil wrongs, has not been adjusted since passage. On the raw numbers, when the familiar Consumer Price Index is applied to the 41-year period since 1973, that $250,000 becomes $1.105 million (or if you prefer to look backwards, $250,000 now was the equivalent of about $56,600 back then).

Let's assume that MICRA was a good idea. Its cap has shrunk by five times ? is that limit Still good policy?

Some folks, especially members of the defense bar, will argue that non-economic losses are inherently too subjective, and subject to manipulation in the hands of crafty carnivores in sharkskin suits. Such damages Are allowed, however, in nearly every other similar kind of claim, and without limitation.

The real problem here is that, in America, plaintiff and defendant typically bear their own litigation costs. Those carrying costs are considerable in medmal cases, for experts, tests, etc., in addition to attorneys' fees. Further, some medmal victims do not have much in the way of economic losses ? think babies and oldsters (in the gruesome calculus of the law, that's especially true if they die as a result). The cap serves to render any lawsuit on their behalf impractical, as expenses would devour the potential award. The same may be true of smaller claims, in general. Regardless of subjectivity ? 'pain,' and 'suffering,' are real ? and in the event of a negligent cause, the perp walks away, without consequence.

The new Prop 46 cap would be $1.1M, and would be adjusted annually to stay current. For all the ambulance-chaser imagery used to demonize plaintiff's attorneys, the currently foreclosed victims ought to be the focus, and I have no problem readmitting their claims to the judicial process.

I'm also not impressed with the bloated estimates of overall health care system cost increases ? there will be a small percentage increase we all share in return for proper compensation of victims ? but it's a minor cost element. It's also a cost we share in Every Other kind of industry, as every business tries to pass-through to the customers its liability insurance costs.

So far, so good, Prop 46, but not for long.

Doctor drug-testing. This requirement works by analogy to similar dictates covering other safety-related professions ? long-haul truckers, pilots etc. If it's important enough to require them to fill the occasional cup, then why not the docs?

Supporters argue the medical errors evidence, above, and cite other stats to the effect that a significant, small percentage of MDs abuse substances. What I have not seen the proponents do, however, is to argue a direct, causal link. Without that, we have a 'rooster caused the sunrise" problem (or post hoc, ergo propter hoc in case you went to Catholic school). Sequence is not causation, and the burden of persuasion relates to the latter.

The linkage to all medical errors is also tenuous. Those are committed by everyone in the treatment chain ? nurses, PAs, pharmacists, device manufacturers, and others ? do docs commit the lion's share? You must convince me that they do, or else you need to argue for testing them all. It's the same safety.

Finally, others, not in government, also have a safety promotion interest here. Employers, clinics, the above malpractice insurers and practice partners all share the financial consequences of errors. If drunk docs are a systemic problem, smart participants will prescribe their own cures.

CURES database. The California DOJ maintains a database called CURES, containing all prescriptions written for certain drugs, including patient name, address and date-of-birth. Law enforcement and health care providers who register (currently only about 12%) have access to these patient histories. Prop 46 would require all providers to register by 2016, and to check the database before prescribing covered drugs to their patients.

The purpose of this requirement is to discourage the kind of doc-shopping that supplied the pill-popper whose car killed the Pack family's son and daughter in Danville. The circumstances of that tragedy are unimaginably poignant, and the hearts of everyone, everywhere in these valleys break at its recollection. The question here, though, must be asked: is this the right 'cure?'

The nature of substance abuse brings out the most wretched kind of resourcefulness in the typical addict. With all the pills left over in all the medicine chests, will foreclosing the option of duplicate prescriptions choke-off the supply? Given ample evidence of the thriving trade in other illegal products, I have to doubt it.

The argument may still be made that greater expense and inconvenience will surely cut-down on the problem -- and any life so-saved is precious. We don't require other solutions to be perfect, after all. I'd like to concur, but need more evidence that this is the way to go.

Finally, if your first reaction was 'Holy exclamation, the state has a CURES database ? and I'm in it?!,' then you've hit on one last issue. Such official compilations have to balance the interests of law enforcement and safety against the privacy interests of the individuals whose data are compiled, as well as against other options to address the problem. In the post-Snowden world, I really need to see that balance before I will vote to extend its impact.

In 1944, the Allies attempted an assault called Operation Market Garden, in The Netherlands. The book and movie "A Bridge Too Far" describe it. It failed because it tried to do too much. I believe Prop 46 is similarly over-ambitious. I'm aware of the huge sums being spent to oppose it, but that money argues exclusively against the one provision whose passage I'd favor. It's a close call, and I hope that folks will chime-in on these merits, but I haven't found enough evidence to be persuaded to support this Proposition.