By Tia Will
Proposition 46 is a 3 part proposal. Advocates would have you believe that it will save lives and that it is the best way to provide for those injured by negligence in the provision of medical care. This is not a life saving nor cost effective measure. The following is my personal perspective on the three portions of the bill and why I oppose it.
Requires drug and alcohol testing of doctors and reporting of positive tests to the California Medical Board. Requires the Board to suspend the doctor pending investigation of a positive test and take disciplinary action if the doctor was impaired while on duty. Requires doctors to report any other doctor suspected of drug or alcohol impairment or medical negligence.
While well intentioned, this portion of the bill is unlikely to save lives and will be the source of very negative unintended consequences. While it is true that impairment is a problem for doctors, just as it is for all members of our society, this law ignores that the vast majority of medical errors are not due to individual impairment, but rather due to system flaws. It further casts far too broad a net, and does not allow for consideration of the facts of the case prior to suspension of privileges. This is a guilty until proven innocent premise.
Consider the following scenario.
Dr. X was involved peripherally in the care of a hospitalized patient. Let’s say that she signed the initial admitting orders because the admitting surgeon, Dr. Y, had forgotten to do so. Now let’s suppose that while Dr. X is off duty, surgeon Y removes the wrong limb. Two weeks later, Dr. X wakes up with a migraine headache. takes a single prescribed Tylenol with codeine. In two hours, feeling better, she decides to go in to the hospital to have lunch with a friend. Because the testing is random, the moment she sets foot in the hospital, she is subject to drug testing. Of course, she tests positive. Now the hospital must report this to the State Board, which must suspend her pending a thorough investigation. Since surgeon Y’s patient has filed a lawsuit naming every doctor whose name is on the chart, Dr. X’s license to practice will now be suspended pending investigation of this case (this is not a wild and crazy scenario, I have had this happen to me, only without the wildly inappropriate random drug screen being proposed). How long might this investigation take? Days, months … some go on for years. And all the while, Dr. X who was completely innocent of any wrong doing , negligence or malpractice is under a mandated suspension of her license. She cannot take care of her patients and her partners have to pick up the slack.
A second possible scenario.
Dr. X and Dr. Y have never gotten along well since they did their residencies together. Their animosity has increased over the years especially since they went to work for practices in direct competition for the same pool of patients. Dr. X sees an opportunity to kill two birds with one stone. This proposition provides the opportunity to report “suspected” alcohol use while on duty to the hospital where they both admit patients. Just the “suspicion” by one physician is enough to trigger the mandatory suspension process if the unsuspecting Dr. Y has had a few off duty drinks at the time he is mandated to appear for drug testing. This law provides no allowance for a pre suspension investigation of the facts.
More importantly the law does nothing to address the much more common reason for injury to patients admitted to hospitals, namely system errors. One example.
Medications used commonly in medical emergencies tend to be kept in single use, pre-measured containers called vials. Instead of having to remember the strengths and appropriate dosing for every medication in emergencies, doctors would order and nurses administer one vial of the appropriate medication. Problems arose when vials of differing strengths or differing medications of similar appearance were kept in close proximity. The solution is not to punish a doctor or nurse for grabbing the wrong vial by mistake or to drug test the doctor, but rather to ensure that vials have very distinctly different appearances and/or are kept in different compartments of the unit medication dispenser thus minimizing the chance of a medication error.
Requires that by the end of 2015, a physician must check the CURES database, a state maintained list of prescribed opiate based medications, prior to prescribing any of a class of restricted opiate based pain medications.
The intent is to prevent deaths from and other abuses of opiate pain medications. While this is a laudable goal, this proposition is not a sound approach for several reasons.
First, the database as it exists now is far from adequate. While this database is intended to provide instantaneous information to the prescribing provider on other opiate prescriptions that patient may have obtained, it is not functional. Requests for necessary information frequently take days rather than minutes to obtain. This could result in doctors not being able to prescribe totally appropriate oral pain medications to patients being discharged post surgically from the hospital or in my inability to prescribe 6 tablets of a pain killer to a patient who did not tolerate an office procedure as well as anticipated and who may need two days worth of medication simply because I cannot obtain the information that I am mandated to see prior to prescription. This will clearly hurt patients way more than it will protect them unless the intended “real time” capability is achieved on time. This rosy possibility is not felt realistic by the individual responsible for the development of the system himself.
Increases $250,000 cap on pain and suffering damages in medical negligence lawsuits to account for inflation.
While I firmly believe that any individual injured by medical negligence or malpractice should be compensated for their economic damages and be cared for for the rest of their life if they are incapable of doing so themselves, I do not see this bill as a solution.
First, economic damages are not capped. That will not change nor should it.
It is only “pain and suffering” that is affected. This bill would increase the maximal amount payable for “pain and suffering” from its current cap of $250,000 to a cap of $ 1.1 million. This will only be paid out if a lawyer successfully sues for the maximum amount thereby enabling her to charge for her billed amount contingent on the amount of the award. What this law essentially achieves is more money for the trial lawyers at the cost of raising the amount that everyone will pay in increased costs to cover the increased amount of malpractice coverage that doctors will have to pay in case of a malpractice suit.
What I would propose as an alternative would be that we separate the need of the individual from the negligence or lack thereof of the doctor. Whether or not the doctor made an error that cost the patient their ability to live pain free, the patient is still in need. I would propose that we support all individuals who have had a poor medical outcome to the degree necessary to allow them to live above the poverty level and that we stop making this support dependent upon a trial pitting one lawyer charged with and paid for defending the doctor (or hospital) against another lawyer charged with and being paid based on the amount of an arbitrary award based on how pitiful and/or disabled the patient appears.
I agree with the authors of this proposition that improvements are needed in patient safety. I agree that opiates are dangerous medications that can be abused and that measures should be taken to avoid over prescription. I agree that we do not adequately care for many who are harmed by medical errors. For the reasons stated, I do not believe that this proposition will address any of these needs adequately and has the potential for doing much unintended harm, both to providers of care and to patients. I am therefore strongly urging that you vote no on Proposition 46.