California Proposition 46, Medical Malpractice Lawsuits Cap and Drug Testing of Doctors (2014)

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Proposition 46
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Type:Initiative
Topic:Healthcare
Status:On the ballot
2014 propositions
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California Proposition 46, the Medical Malpractice Lawsuits Cap and Drug Testing of Doctors Initiative, is on the November 4, 2014 ballot in California as an initiated state statute.

Supporters of the initiative reported submitting an estimated 830,000 signatures on March 24, 2014, versus the requirement of 504,760 valid signatures.[1] The initiative was certified on May 15, 2014 by the California Secretary of State.[2]

If approved by voters, the initiative will:[3]

  • Increase the state's cap on damages that can be assessed in medical negligence lawsuits to over $1 million from the current cap of $250,000.
  • 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 state prescription drug history database before prescribing certain controlled substances.

Supporters of the initiative refer to it as the Troy and Alana Pack Patient Safety Act of 2014, after two children who were killed by a driver under the influence of abused prescription drugs.[4]

The measure, if approved, would create the first law in the United States to require the random drug testing of physicians.[5]

Two versions of the initiative were submitted (#13-0011 and #13-0016). Version #13-0011 failed to qualify for the ballot. Version #13-0016 qualified for the ballot.

Text of measure

See also: Ballot titles, summaries and fiscal statements for California's 2014 ballot propositions

Ballot title:

Drug and Alcohol Testing of Doctors. Medical Negligence Lawsuits. Initiative Statute.

Official summary:

"Requires drug and alcohol testing of doctors and reporting of positive test to the California Medical Board. Requires Board to suspend doctor pending investigation of positive test and take disciplinary action if doctor was impaired while on duty. Requires doctors to report any other doctor suspected of drug or alcohol impairment or medical negligence. Requires health care practitioners to consult state prescription drug history database before prescribing certain controlled substances. Increases $250,000 cap on pain and suffering damages in medical negligence lawsuits to account for inflation."

Fiscal impact statement:[6]

(Note: The fiscal impact statement for a California ballot initiative authorized for circulation is jointly prepared by the state's Legislative Analyst and its Director of Finance.)

"Increased state and local government health care costs from raising the cap on medical malpractice damages, likely ranging from the tens of millions of dollars to several hundred million dollars annually."
"Uncertain, but potentially significant, state and local government savings from new requirements on health care providers, such as provisions related to prescription drug monitoring and alcohol and drug testing of physicians. These savings would offset to some extent the health care costs noted above."

Controversy

The San Diego Union-Tribune argued that the first sentence of the ballot title - "Drug and alcohol testing of doctors." - was intentionally placed first by Attorney General Kamala Harris (D). The editorial board continued, "That’s right — Attorney General Kamala Harris intentionally deceived ballot signers by highlighting one of the fig leaves that trial lawyers attached to the measure to hide their real intent. It’s in keeping with her long history of using misleading ballot titles and summaries to help measures her allies like and hurt measures they don’t."[7]

Background

The Medical Injury Compensation Reform Act (MICRA) was signed in 1975 by Gov. Jerry Brown (D). MIRCA capped pain and suffering damages, as a result of medical malpractice, at $250,000. He did so in response to doctors who complained about medical malpractice awards being too high. If MICRA was pegged to inflation, the cap would now be set at $1.1 million. $250,000 in 2014 would have been $57,600 in 1975.[4]

Support


Consumer Watchdog's video with Bob Pack explaining the initiative.

The organization leading the campaign in support of the measure is known as The Troy and Alana Pack Patient Safety Act or the Pack Act.[8]

Political consultant Chris Lehane was hired to advise supporters.[3]

Supporters

Officials

Organizations

Arguments

Consumer Watchdog issued a flyer following their signature submission on March 24, 2014. The flyer made the following arguments:[11]

  • "According to a study published in the Journal of Patient Safety, medical negligence is the third leading cause of death in the country behind only heart disease and cancer. As many as 440,000 people die each year from preventable medical negligence. That’s like a 747 crashing every 10 hours."
  • "The California Medical Board estimates that almost one-in-five doctors (18%) suffer from drug and/or alcohol abuse at some point during their careers – and leading medical safety experts have called for random drug testing to curb substance abuse and ensure patient safety."
  • "The Journal of the American Medical Association found that doctors are the biggest suppliers for chronic prescription drug abusers, and called for the mandatory usage of state prescription drug databases... A 2012 Los Angeles Times investigation found that drugs prescribed by doctors caused or contributed to nearly half of recent prescription overdose deaths in Southern California."

Donors

Total campaign cash Campaign Finance Ballotpedia.png
as of August 21, 2014
Category:Ballot measure endorsements Support: $5,347,953
Circle thumbs down.png Opposition: $56,265,355

Four ballot measure campaign committees registered in support of the initiative as of August 21, 2014:[12]

Note: Consumer Watchdog Campaign - Yes on 45 and 46, A Coalition of Consumer Advocates, Attorneys and Nurses is supporting Proposition 46 and Proposition 45.
Committee Amount raised Amount spent
Consumer Watchdog Campaign - Yes on 45 and 46, A Coalition of Consumer Advocates, Attorneys and Nurses $415,000 $356,373
Consumer Watchdog Campaign - Yes on 46 $0 $0
Families for Patient Safety $0 $725
Yes on Prop. 46, Your Neighbors for Patient Safety $4,932,953 $1,479,698
Total $5,347,953 $1,480,423
Note: Of the $4,932,953 raised by Yes on Prop. 46, Your Neighbors for Patient Safety, $75,000 or 1.5 percent is held as unpaid or unforgiven loans.

The following are the donors who contributed $50,000 or more to the campaign supporting the initiative as of June 30, 2014:[12]

Note: Some of these donors gave their money to a committee that was simultaneously supporting more than one ballot measure. When that is the case, it is not generally possible to break down how much of that donor's money specifically was spent on the campaign for a particular proposition. Those contributions are listed below with shading; readers should not assume that all or even most of a donation to a multi-purpose committee was used for expenditures related to this particular proposition.
Donor Amount
Consumer Attorneys Issue PAC $1,108,000
Consumer Watchdog $267,148
Greene Broillet & Wheeler, LLP $125,000
Casey, Gerry, Schenk, Francavilla, Blatt & Penfield, LLP $100,000.00
Bruce G. Fagel, A Law Corporation $85,000.00
Bisnar/Chase Personal Injury Attorneys, LLP $75,000.00
Christopher B. Dolan $75,000.00
CA Nurses Association Initiative PAC $50,000
Shernoff, Bidart, Echeverria, Bentley, LLP $50,000
Robinson Calcagnie Robinson Shapiro Davis, Inc. $50,000
Wylie Aitken, a Law Corporation $50,000
Cotchett, Pitre & McCarthy, LLP $50,000
Don A. Ernst $50,000
Gillin Jacobson Ellis & Larsen $50,000
Law Offices of Walkup, Melodia, Kelly & Schoenberger $50,000
Waters & Kraus, LLP $50,000

Campaign advertisements

Consumer Watchdog issued the following video advertisement series titled, "Pee in a Cup, The Musical."[8]


Consumer Watchdog's "Pee in a Cup, The Musical" (Part 1).

Consumer Watchdog's "Pee in a Cup, The Musical" (Part 2).

Consumer Watchdog's "Pee in a Cup, The Musical" (Part 3).

Opposition

California No On 46 2014.png

Stop Higher Health Care Costs - No On 46! is leading the campaign in opposition to the initiative.[13]

Democratic political consultant Gale Kaufman was hired by a coalition of insurers, hospitals and doctors to oppose the measure.[3]

Opponents

See also: A full list of opponents

Organizations

The following are health and healthcare-related organizations opposing the initiative:[14]

  • California Hospital Association[15]
  • California Dental Association
  • California Medical Association
  • American College of Emergency Physicians, California Chapter
  • American Congress of Obstetricians & Gynecologists
  • Medical Oncology Association of Southern California
  • California Academy of Eye Physicians and Surgeons
  • California Ambulance Association
  • California Association of Health Facilities
  • California Academy of Physician Assistants
  • California Ambulatory Surgery Association
  • American Nurses Association, California
  • California Assisted Living Association
  • California Academy of Cosmetic Surgery
  • California Rheumatology Alliance
  • California Society of Periodontists
  • California Dialysis Council
  • Association of Orthopedic Technologists of California
  • Association of California Healthcare Districts
  • California Association of Marriage and Family Therapists
  • California Association of Oral and Maxillofacial Surgeons
  • California Association for Health Services at Home
  • California Association of Psychiatric Mental Health Nurses in Advanced Practice
  • California Nurse-Midwives Association
  • California Society of Plastic Surgeons
  • California Orthotic & Prosthetic Association
  • California Podiatric Medical Association
  • California Psychiatric Association
  • California Society of Addiction Medicine
  • California Society of Pathologists
  • California Society of Pediatric Dentistry
  • California State Oriental Medical Association
  • California Clinical Laboratory Association
  • NORCAP
  • American Osteopathic Association
  • Operating Room Nursing Council of California
  • Osteopathic Physicians & Surgeons of California
  • Partnership HealthPlan of California
  • California Family Health Council
  • California Association of Physician Groups
  • Infectious Disease Association of California
  • California Orthopaedic Association
  • California Pharmacists Association
  • California Society of Anesthesiologists
  • California Chapter of the American College of Cardiology
  • California Neurology Society
  • California Academy of Family Physicians
  • California Association for Nurse Practitioners
  • California Academy of Preventive Medicine
  • California Society of Health-System Pharmacists
  • Northern CA Chapter of the American College of Surgeons
  • American College of Surgeons-Southern CA Chapter
  • San Diego Chapter of the American College of Surgeons
  • California Association of Nurse Anesthetists
  • California Urological Association
  • California Radiological Society
  • California Thoracic Society
  • California Society of Dermatology & Dermatologic Surgery
  • Society of OB/GYN Hospitalists (SOGH)
  • American Academy of Orthopaedic Surgeons
  • CA Association of Neurological Surgeons
  • CA Association of Oral and Maxillofacial Surgeons
  • California Optometric Association
  • California Otolaryngology Society
  • California Society of Anesthesiologists
  • California Orthotic & Prosthetic Association
  • Association of Northern California Oncologists
  • Hemophilia Council of California
  • American College of Physicians California Services
  • Chinese Community Health Care Association
  • CA Chiropractic Association
  • Southern California HMO Podiatric Medical Society
  • American Academy of Pediatrics, California
  • National Association of Social Workers–CA
  • Children’s Specialty Care Coalition
  • California Children’s Hospital Association
  • Children’s Physicians Medical Group
  • A New PATH (Parents for Addiction Treatment & Healing)

The following are other organizations opposing the initiative:[14]

Unions

  • California State Building & Construction Trades Council[17]
  • Service Employees International Union (SEIU) California[14]
  • SEIU United Long Term Care Workers (ULTCW)
  • SEIU-USWW (United Security Workers West)
  • SEIU 1000
  • SEIU - Committee of Interns and Residents
  • AFSCME California PEOPLE
  • Union of American Physicians and Dentists (AFSCME Local 206)
  • IBEW Ninth District
  • IBEW Local 11
  • IBEW Local Union 441
  • IBEW Local Union 477
  • IBEW Local Union 551
  • Southern California Pipe Trades Health & Welfare Fund
  • Plumbers & Pipefitters Local Union 228
  • Plumbers & Steamfitters Local Union 398
  • Plumbers and Pipefitters UA Local Union 442
  • Plumbers & Pipefitters Local 447
  • Southern CA Pipe Trades DC 16
  • Plumbers, Pipe and Refrigeration Fitters UA Local 246
  • International Brotherhood of Boilermakers
  • Boilermakers Local 92
  • Boilermakers Local 1998
  • Sheet Metal, Air, Rail and Transportation Workers (SMART), Sheet Metal Workers’ Local Union No. 104
  • Sprinkler Fitters UA Local 483

Arguments

Stop Higher Health Care Costs - No On 46! issued an abundance of critiques of Proposition 46 on their website. The following are their basic "Why Voters Should Oppose" arguments:

OPPOSE THE “MICRA” BALLOT MEASURE
A costly threat to your personal privacy Californians can’t afford.

Costly for Consumers

  • Trial lawyers drafted a November 2014 ballot measure seeking to change current law to file more medical lawsuits against health care providers.
  • If they get their way, medical lawsuits and payouts will skyrocket. Someone will have to pay those costs. And that someone…is you.

Threatens People’s Personal Privacy

  • Money isn’t the only thing this ballot measure will cost you. It could cost you your personal privacy, and the doctors you trust and depend on.
  • This measure forces doctors and pharmacists to use a massive statewide database filled with Californians’ personal medical prescription information. A mandate government will find impossible to implement, and a database with no increased security standards to protect your personal prescription information from hacking and theft – none.
  • And who controls the database? The government – in an age when government already has too many tools for violating your privacy.

Jeopardizes People’s Access to their Trusted Doctors

  • If California’s medical liability cap goes up, you could also lose your trusted doctor. It’s true. Many doctors will be forced to leave California to practice in states where medical liability insurance is more affordable.
  • Even respected community clinics, including Planned Parenthood, warn that specialists like OB-GYNs will have no choice but to reduce or eliminate vital services, especially for women and families in underserved areas.

Increased costs. Losing your doctor. Threatening your privacy.
Exactly what happens when trial lawyers play doctor.

  • That’s why a diverse and growing coalition of trusted doctors, community health clinics, hospitals, family-planning organizations, local leaders, public safety officials, businesses and working men and women urge Californians to oppose the “MICRA” ballot measure.

[18]

—Stop Higher Health Care Costs - No On 46!, [19]

Other arguments against the initiative include:

  • Kimberly Stone, president of the Civil Justice Association of California, said, “If you’re a highly-paid doctor in Los Angeles or San Francisco, it would be OK. You could pass those costs on to your patients. But if you’re an anesthesiologist or an OBGYN in a rural area or a low-income area, a dramatic increase in your medical malpractice insurance premiums could make a big difference to your ability to practice.”[16]
  • Tom Scott, executive director of California Citizens Against Lawsuit Abuse, said, “Trial lawyers have one goal in mind with this initiative: they want to file more lawsuits against more doctors and make more money doing it. If this initiative passes, trial lawyers will profit wildly, and California consumers will be the ones left holding the bag. A recent study found that this initiative will increase health care costs by $9.9 billion annually – or more than $1,000/year in higher health costs for a family of four.”[20]
  • Dr. Richard Thorp, president of the California Medical Association, argued, "A ballot measure that is certain to generate more medical lawsuits and drive up costs for every health consumer in California is the worst possible idea at the worst possible time. This initiative is bad for patients, bad for taxpayers and bad for California’s entire system of healthcare delivery."[21]

Donors

Three ballot measure campaign committees registered in opposition of the initiative as of August 21, 2014:[12]

Committee Amount raised Amount spent
California Association of Health Facilities, Defend MICRA on the November Ballot Committee $102,715 $50,050
No on 46 - Patients, Providers and Healthcare Insurers to Protect Access and Contain Health Costs $56,041,158 $3,044,767
Californians Allied for Patient Protection Ballot Measure Committee $121,482 $121,482
Total $56,265,355 $3,216,299
Note: Of the $56,041,158 raised by No on 46 - Patients, Providers and Healthcare Insurers to Protect Access and Contain Health Costs, $1,692,808 or 3 percent is held as unpaid or unforgiven loans.

The following were the donors who contributed $250,000 or more to the campaign opposing the initiative as of June 10, 2014:[12]

Donor Amount
California Medical Association Physicians' Issues Committee $5,064,542
Cooperative of American Physicians Independent Expenditure Committee $5,000,000
NorCal Mutual Insurance Company $5,000,000
The Doctors Company $5,000,000
Kaiser Foundation Health Plan, Inc. $3,000,000
California Hospitals Committee on Issues $2,500,000
Medical Insurance Exchange of California $2,500,000
California Dental Association $2,000,000
The Dentists Insurance Company $1,560,000

Media editorial positions

See also: Endorsements of California ballot measures, 2014

Other opinions

Should California amend its 1975 state law capping pain-and-suffering damages in medical malpractice lawsuits at $250,000? Perhaps. Nearly 40 years ago, a quarter-million dollars amounted to a huge sum. Nowadays, it isn’t particularly much to someone who has suffered from egregious incompetence or neglect in their health care... [The measure] should be seen as part of a larger Golden State legal culture in which trial lawyers use lawsuits and the threat of lawsuits for what amounts to legal extortion... It shouldn’t be rewarded with a yes vote in November. Instead, Californians should press for sweeping reform that addresses the malpractice cap — and many other problems with the state’s legal system as well.[18]

Polls

See also: Polls, 2014 ballot measures
California Proposition 46 (2014)
Poll Support OpposeUndecidedMargin of ErrorSample Size
The Field Poll
6/26/2014 - 7/19/2014
58.0%30.0%12.0%+/-2.61,535
Note: The polls above may not reflect all polls that have been conducted in this race. Those displayed are a random sampling chosen by Ballotpedia staff. If you would like to nominate another poll for inclusion in the table, send an email to editor@ballotpedia.org


Path to the ballot

See also: Signature requirements for ballot measures in California
  • Robert S. Pack submitted a letter requesting a ballot title for Version #13-0011 on July 24, 2013.
  • Robert S. Pack submitted a letter requesting a ballot title for Version #13-0016 on August 30, 2013.
  • A ballot title and summary were issued by the Attorney General of California's office for Version #13-0011 on September 13, 2013.
  • A ballot title and summary were issued by the Attorney General of California's office for Version #13-0016 on October 24, 2013.
  • 504,760 valid signatures were required for qualification purposes.
  • The 150-day circulation deadline for #13-0011 was February 10, 2014.
  • The 150-day circulation deadline for #13-0016 was March 24, 2014.
  • Version #13-0011 failed to qualify for the ballot on February 24, 2014.
  • About 830,000 signatures were filed with election officials for Version #13-0016 on March 24, 2014.[1]
  • The measure was certified for the ballot on May 15, 2014.

Cost of signature collection:

The cost of collecting the signatures to qualify the initiative for the ballot came to $1,438,885.

The signature vendor was Kimball Petition Management.

See also: California ballot initiative petition signature costs

See also

External links

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Basic information

Support

Opposition

Additional reading

References

  1. 1.0 1.1 Larkspur-CorteMadera Patch, "Would You Support California Measure Raising Damages in Medical Malpractice Lawsuits?," March 24, 2014
  2. California Secretary of State, "Qualified Statewide Ballot Measures," accessed May 16, 2014
  3. 3.0 3.1 3.2 Los Angeles Times, "Special interest groups look to shape 2014 California ballot," December 7, 2013
  4. 4.0 4.1 Washington Post, "The most expensive race of 2014 could be this California ballot measure," March 25, 2014
  5. PR Newswire, "California Ballot Initiative Will Enact Nation's First Law Requiring Random Drug Testing Of Physicians, says Consumer Watchdog Campaign," April 16, 2014
  6. Legislative Analyst's Office' "Proposition 46: Drug and Alcohol Testing of Doctors. Medical Negligence Lawsuits. Initiative Statute," July 17, 2014
  7. San Diego Union-Tribune, "Malpractice ballot measure: Shame on AG Kamala Harris," March 29, 2014
  8. 8.0 8.1 The Troy and Alana Pack Patient Safety Act, "Homepage," accessed July 7, 2014
  9. Reuters, "California measure to raise malpractice cap gets high-profile backer," March 31, 2014
  10. Twitter, "38 Is Too Late," July 1, 2014
  11. Consumer Watchdog, "The Problem: Medical Negligence Kills 440,000 Americans Every Year," March 24, 2014
  12. 12.0 12.1 12.2 12.3 California Secretary of State, "Campaign Finance," accessed June 9, 2014
  13. Stop Higher Health Care Costs, "Homepage," accessed July 3, 2014
  14. 14.0 14.1 14.2 Stop Higher Health Care Costs, "Who We Are, accessed July 3, 2014
  15. 15.0 15.1 The Sacramento Bee, "Medical malpractice initiative qualifies for California ballot," May 15, 2014
  16. 16.0 16.1 16.2 Legal Newsline Legal Journal, "Damage cap battle could be most expensive ballot initiative ever in Calif., observer says," January 31, 2014
  17. 17.0 17.1 Stop Higher Health Care Costs, "CA Building Trades & CA NAACP Latest Groups to Oppose MICRA Measure and Join Newly-Numbered “No On 46” Campaign," July 7, 2014
  18. 18.0 18.1 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributed to the original source.
  19. Stop Higher Health Care Costs, "Oppose the “MICRA” Ballot Measure," accessed July 7, 2014
  20. Legal Newsline, "Calif. advocacy groups decry ballot measure to increase med-mal cap," May 20, 2014
  21. Los Angeles Times, "Backers of malpractice cap ballot measure submit signatures," March 24, 2014
  22. San Diego Union-Tribune, "Malpractice ballot measure: State needs broader legal reform," March 26, 2014