Endorsement: No on Proposition 46

Proposition 46 is a combination platter of healthcare-related proposals, each of which tries to accomplish something meaningful for California consumers. One provision would increase compensation for people harmed by careless or reckless healthcare providers. A second aims to protect hospital patients against doctors who are substance abusers. And a third seeks to curb over-prescribing of opioids and other dangerous medications. But as worthwhile as these goals may be, the methods the measure would use to achieve them are too flawed to be enacted into law.

The most familiar element of Proposition 46 is the proposal to raise the cap on “pain and suffering” damages in medical malpractice cases. California imposed a $250,000 cap 39 years ago as part of a broader effort to limit malpractice insurance premiums, which doctors said were discouraging physicians from working in the state. Proposition 46 would raise the cap to roughly $1.1 million — what $250,000 in 1975 would be worth in today’s dollars — and require it to keep pace with inflation.

Proponents of the measure argue that the cap hasn’t improved access to care or even held down the average damage award in malpractice cases, in which awards for medical expenses and lost wages are not limited. And even the cap’s supporters are hard-pressed to argue that it should be almost 80% lower in inflation-adjusted terms than it was in 1975. The dwindling real value of the cap has made it progressively harder to find lawyers willing to go to court for victims with large intangible losses but small economic ones — typically, victims who are children or nonworking spouses or elderly.

Nevertheless, quadrupling the cap all at once would force doctors, hospitals and clinics to carry considerably higher levels of insurance, which would cost them more. The director of one clinic serving low-income Californians said her insurer estimated that premiums would jump 50% to 100%. That could force clinics and practices with thin margins to shave costs by treating fewer of the uninsured poor or cutting back on riskier practices, such as maternity care.

The right approach would be to raise the cap gradually and see if any problems emerge — for example, if lawsuits increase but clinics shut down and access to care shrinks, or if hordes of patients shift from clinics to hospital emergency rooms. But that’s not the path Proposition 46 takes.

The proposition’s second major provision would require doctors and pharmacists to check CURES, a state database of prescriptions that have been filled, before prescribing or dispensing abuse-prone drugs to a patient for the first time. This provision would eliminate a glaring hole in CURES, which has been online since 2009: Pharmacists are required to report what they dispense, but no one is required to check those listings before doling out more drugs. Yet it would take the state weeks or months to register the roughly 170,000 healthcare providers who dole out dangerous drugs but haven’t yet signed up for CURES. Proposition 46 ignores this reality, and would expose those who fail to check CURES to stiff penalties even if they weren’t able to sign in.

Finally, the measure would require hospitals to conduct random drug and alcohol tests on all physicians who work there or have admitting privileges. It also would require tests of any physician who treated a patient during or in the 24 hours leading up to a serious hospital error. Random drug tests are de rigueur in some safety-related professions, and research shows that physicians are no more immune to addiction than the rest of the population. But there’s no logic to the random testing proposed by Proposition 46. If drug abuse in hospitals causes enough problems to warrant intrusive tests, why test only doctors, and why treat those who perform relatively low-risk treatments the same as neurosurgeons?

The Legislature can and should be faulted for not adjusting the cap on damages for pain and suffering, not requiring healthcare providers to check the CURES database and failing to improve the state Medical Board’s troubled monitoring program for substance-abusing physicians. But the methods proposed by Proposition 46 to solve those problems have too many potential drawbacks to be worth the risk.

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