In Prop. 46 doctor vs. attorney battle, doctors prevail

We love doctors.

We watch their shows. We read their books. We have no qualms about taking our pants off for them when asked.

And, if you’re rating professionals with advanced degrees, doctors rate well ahead of attorneys, especially plaintiffs’ attorneys. It’s a draw between used-car salesmen, politicians and plaintiffs’ attorneys as to who is the subject of more derisive joking and creative cursing.

So perhaps we should not be surprised that a patient safety measure on the California ballot backed by plaintiffs’ attorneys and opposed by physicians was soundly defeated by a margin of 67 percent to 33 percent.

Proposition 46 would have done three main things:

• Raise the $250,000 cap on medical malpractice payments for pain and suffering, one of the strictest limits in the country.
• Require physicians to submit to drug testing.
• Require physicians to use the state’s prescription drug monitoring system to monitor for patients who are “doctor shopping” to get access to addictive drugs.

That sounds like three different laws in one proposition, right? Ultimately, the mere fact that Proposition 46 was trying to be all things to all patient safety advocates was probably its downfall.

As I noted last fall when the campaign for the proposition started, the idea of having doctors drug tested is not particularly controversial. Lots of highly paid professionals are drug tested and many low-paying jobs require it, too. But the malpractice cap has been sacred in California for a long time.

Enhancing the state’s drug-tracking system, the piece that received the least amount of campaign attention, had the opportunity to do the most good.

Sure, higher medical malpractice payments may have put pressure on physicians to perform better and certainly would have provided some justice to families whose lives are wrecked by bad medical choices. And having doctors be tested for drugs likely would have caught a few with drug problems every year.

But the problem that has been identified in countless news stories and academic papers and interest group reports is the sheer availability of highly potent prescription painkillers.

Tech entrepreneur Bob Pack was one of the driving forces and author of Proposition 46. Pack knows firsthand the damage that can be done by failing to track addictive prescriptions. His children were killed when a driver high on painkillers ran them over. The proposition was known as the Troy and Alana Pack Act in honor of them.

Pack told me in March 2013 that the state system would need to be improved greatly to be effective. And one of the problems with the drug-tracking system is that many physicians simply don’t use it. Even the ones who do try to use the system often encounter difficulties with what many say is a balky, poorly engineered system. Doctors don’t want legislation that forces them to use it, either.

Consider how the California Medical Association recently attacked the central function of the system in court, arguing that the Medical Board of California should not be allowed to use data from the drug-tracking system to monitor for physicians who are overprescribing dangerous drugs.

And doctors can be very persuasive because we tend to trust them. Watch this video of Dr. Rahul Jandial, a City of Hope neurosurgeon and frequent on-air commentator, talking about why people should not vote for Prop. 46. He’s persuasive, right?

If patient safety advocates like Pack are going to win the day in raising malpractice limits, requiring doctors to be drug tested, or making improvements to prescription-drug monitoring, they need to figure out how to counter the plainspoken but authoritative voices of doctors like Jandial. Breaking up the initiatives might be a start. And getting more people like Pack out front talking about the issues in an equally plainspoken but authoritative way would make a difference, too.

Photo by Vox Efx via Flickr.