Not Life Saving, Not Cost Effective – Vote NO on Proposition 46

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.

Part One

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.

Part Two

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.

Part Three

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.

About The Author

Tia is a graduate of UCDMC and long time resident of Davis who raised her two now adult children here. She is a local obstetrician gynecologist with special interests in preventive medicine and public health and safety. All articles and posts written by Tia are reflective only of her own opinions and are in no way a reflection of the opinions of her partners or her employer.

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  1. Frankly

    This might be one of the few instances where Tia and I agree on voting recommendations.  However, I might agree for different reasons.

    The bottom line for me is that passing this initiative would just bring more business to trial lawyers.  And the end result of that will be greater healthcare costs resulting in de minimis benefit to the population other than the population of trial lawyers.

  2. Barack Palin

    I’m voting no on Prop 46 because I feel this is being pushed by lawyers to up the lawsuit caps which in turn will cause higher medical and insurance costs for everyone.  As far as doctors being drug tested I have no problem with that.  People’s lives are in their hands just as pilots are drug tested for the same reason.

    A USA TODAY review shows more than 100,000 doctors, nurses, medical technicians and health care aides are abusing or dependent on prescription drugs in a given year, putting patients at risk.

  3. WesC

    I believe the rationale for the increase in the pain and suffering damages is this.  The Medical Injury Compensation Reform Act (MICRA) was signed in 1975 by Gov. Jerry Brown. MICRA capped noneconomic 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 noneconomic cap would now be set at $1.1 million.  Malpractice related costs are currently responsible for less than one half of one percent of total healthcare costs.  The idea that this measure will increase the cost of healthcare is not true by any stretch of the imagination.

    The requirement to consult a prescription drug database isn’t an unprecedented move. Nearly every state has a database tracking prescription information for certain controlled substances, but only a few (including Kentucky, New York, Tennessee and Virginia) require doctors to use them.  

    There is the argument by some that say there’s evidence that doctors should be held to the same standard as professionals with major public-safety responsibilities, such as airline pilots, train operators, fire fighters and police officers — all of whom are subject to drug testing.  In about 2008 the California Medical Board voted to end their  diversion program for substance abusing physicians.  The decision to terminate the program was set in motion by the results of a 2004 audit which illustrated major problems with how the program was being administered.  The program was very poorly administered and very easy to manipulate.  

    1. South of Davis

      DP wrote:

      > funny how both sides have their boogeymen. 

      When they want to get personal they GOP talks abut George Soros and Democrats mention David Koch (and or his brother)…

  4. Tia Will


    I believe that our positions might be closer than might have been implied by my article.

    I have no problem at all with drug testing doctors as long as it is done in a manner that actually protects patients.

    I could support a bill that  required a rapid screen at the beginning or one’s shift or before a scheduled surgery.

    I could also support,a bill that promoted review of the facts prior to suspension of license. The bill was unfortunately not crafted in such a way as to protect patients when they actually need protection, nor does it offer reasonable due process for doctors who have never worked impaired. Unfortunately this is a guilty until you can prove yourself innocent bill , regardless of how long that might take.

    neither applies with the bill as written.


    I also would support a well written bill promoting the use of a data base for opiate drugs with two conditions.

    1. The database would have to be accessible immediately.

    2. Very small amounts of opiates should be exempt to that a patient in acute pain now can still have her one, or three or 10 tablets needed to tide her over until the data base can be accessed.

    Neither is the case with the law as now written.

  5. WesC

    Abuse of prescription pain killers has really become a nightmare.  Some interesting data from a 2013 CDC report……   In 2008 there were 14,800 prescription painkiller deaths.   For every 1 death there are: 10 treatment admissions for abuse, 32 ER visits for misuse of abuse, 130 people who abuse or are dependent, 825 non-medical users.   In 2010 2 million people reported using prescription painkillers non-medically.

    The source of prescription painkillers for those who abuse them is………..  55% obtained free from friends or relatives,  17% prescribed by doctors,  11% bought from friend or relative…. and only 4% of them were obtained from a drug dealer.

    A study on Mason County Washington (Olympia) researching their explosion of heroin addiction found that the vast majority had developed and addiction to prescription painkillers (primarily OxyContin) before moving on to heroin.  An unintended consequence of the zeal to treat all pain (the 5th vital sign) had resulted in these drugs being readily available on the streets and everywhere else.  The DEA clamps down on prescribers, the price of OxyContin skyrockets, and heroin becomes the cheap alternative.

    On a side note a good friend of mine was a ER physician who was recently sentenced to 5 years in federal prison and had his MD license revoked for his OxyContin addiction.  Jack would write OxyContin prescriptions for about 6 of his friends who would  fill them at the local pharmacy.  Jack would then buy the OxyContin from them to support his own addiction.  I can’t help but think that if there maybe would have been some sort of diversion program with teeth, Jack might still be practicing medicine in the ER.  I also know that drug addiction is a very difficult thing to kick and a lot of addicts would rather die than give up their habit.  Reminds me of a public health professor tell us once that unless alcohol/drug addicts are faced with imminent loss of one of the “4 L’s” any intervention is pretty much doomed to failure.  The 4 L’s are life, lover, liver, or livelihood!  (You quit or soon die. You quit or I’m leaving you. You quit or your liver will fail you. You quit or you’re fired.)

    I am not in favor of some heavy handed mandatory testing of all physicians.  I am in favor of some sort of diversion program for those who are impaired and want to get their life together.


    1. Tia Will

      I am in favor of some sort of diversion program for those who are impaired and want to get their life together.”

      Could not agree more. And am very sorry to hear about your friend.


  6. DavisBurns

    Just a distinction between habituation and addiction.  If one takes opioid medication for on going pain, one may become habituated but not addicted.  If habituated and the source of the pain is resolved, one will need to taper off the medications but does not feel the need to continue the medication.  With addiction, one seeks the medication for the effects of the drug regardless…crossing the line from need to want may be hard to determine but people in pain should not be made to suffer because of other’s addictions.  This is true for doctors as well.  If a doctor has chronic pain, opioid medication may be appropriate although long term use tends to have some impact on brain function which gets complicated. Nevertheless, drug testing for doctors must allow legal prescription drugs and because doctors know the system, it isn’t hard for them to have legal drugs. This proposition, like most legislation by proposition, misses the mark.


  7. TrueBlueDevil

    I find Tia’s example of a doctor taking one Tylenol interesting, but it sounds like an extreme and unlikely case.

    How about the doctor who has become hooked on cocaine, or smoked a lot of marijuana the night before? We test truckers, but we won’t test doctors?

    1. Tia Will


      Again, I do not oppose testing doctors. I object to testing doctors in a random fashion rather than the testing being targeted to their duties and I object to suspension prior to fact finding. Neither of these actually does anything to protect patients and puts doctors licenses and future employability at risk needlessly.

      If you find my example far fetched I would like to share with you what actually did happen to me.

      A few years ago, I was on my shift on labor and delivery when I was asked by the nurse if she could let a patient scheduled to start an induction of labor have lunch because there had been a delay in getting her admitted and she was hungry. I looked at the 20 minutes of the fetal tracing ( the amount we usually review to determine well being ) and said that she could eat. Her induction was a three day event ( during none of which was I even in the hospital) and she ended up with a Cesarean and a child with suspected neurologic deficit. She sued naming every doctor whose name was on the chart, including me. This led to me being pulled from my clinic on multiple occasions for legal review of the chart and ultimately a deposition simply because at a time when she and the baby appeared completely healthy, I said she could have the lunch she was requesting. For me, this is not that much of a burden since it is all handled within the Kaiser system. For a doctor in solo, or small group practice it is a major burden. And this is all happening without the current proposition. Now if you add in the burden of random drug testing and consider that the time that a doctor tests can be when they are off duty ( as the law is written) it does not seem so far fetched to me.

      Usually I take the threats that people will limit their practices with a grain of salt thinking that it is a fear ploy. But this I know, having practiced my entire career without having ever used alcohol, or any opiates, or any recreational drugs while practicing, if I were still engaging in hospital practice and this measure passed, I would immediately stop my hospital practice and I would encourage any of my colleagues who could to leave their hospital practice behind too.


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