Copyright © 2014 by Mark Gabrish Conlan for Zenger’s
Newsmagazine • Used by permission
For Prop. 46: Kathy
Olsen
Against Prop. 46: Jay
Hansen
Remember those
episodes of the original 1960’s Star Trek
in which the Enterprise crew
members destroyed seemingly all-powerful computers by feeding them tons of
inconsistent and illogical information? That’s pretty much what the
predominantly Queer San Diego Democrats for Equality went through at their
September 25 meeting when they tried — and failed — to come to a position on
Proposition 46 on California’s November 4 election ballot.
Proposition 46’s
official title, “Drug and Alcohol Testing of Doctors; Medical Negligence
Lawsuits,” indicates that it’s a smorgasbord of provisions relating to health
care in general and protecting people from medical malpractice in particular.
The description of the proposition in the California voters’ guide has five
bullet points, three of which relate to the measure’s requirement that all
doctors with hospital admitting privileges must submit to drug and alcohol
tests and, if they test positive, their medical licenses will be suspended
pending an investigation. It also requires doctors suspecting other doctors of
drug or alcohol abuse to report them to the state medical board.
The measure also
requires that before they can prescribe certain controlled substances — mostly
potentially addictive painkillers like morphine, Valium or Oxycontin — doctors
will have to check a database called Controlled Substance Utilization Review
and Evaluation System, or CURES for short. The idea is to prevent patients from
abusing these drugs through so-called “doctor-shopping,” which means seeing
several different doctors to obtain quantities of these drugs far larger than
what they would need for legitimate medical uses. Under current law doctors can
register to use CURES, but they don’t have to. If Prop. 46 passes, however,
they will have to as of January 1, 2016
— though, according to the legislative analyst’s official ballot description,
“providers will not be required to check the database prior to prescribing or
dispensing drugs.”
But the nub of
Proposition 46 is its proposed changes to the Medical Injury Compensation
Reform Act (MICRA), passed by the California legislature in 1975. MICRA was
passed in response to complaints from doctors and hospitals that they could no
longer afford medical malpractice insurance because of lawsuits resulting in
high jury awards to victims. So the bill set a $250,000 cap on so-called
“non-economic damages” from medical malpractice, including losing limbs, sight,
hearing, or the ability to walk. The bill did not index the cap to inflation, so it remains at $250,000 even though the
buying power of that sum has dropped dramatically since 1975. Prop. 46 would
raise the cap to $1.1 million and index it to inflation.
Supporters of
Prop. 46 claim the cap is so low many medical malpractice victims —
particularly children and retired people, who can’t prove economic damages
because they weren’t part of the workforce when they were hurt — can’t sue at
all because they can’t find attorneys willing to take their cases for just
one-third of $250,000. Opponents say lifting the cap will lead to vastly
increased health care costs, as exploitative trial lawyers look for big paydays
for themselves and their clients and malpractice insurance premiums go through
the roof again.
The people who
spoke for Prop. 46 at the Democrats for Equality September 25, legislative
staff member Chris Ward and patient advocate Kathy Olsen, started with a
dramatic story aimed straight at the heartstrings. “I’m the mother of Stephen
Olsen, who was two years old when he was injured,” Kathy Olsen said. “He
suffered from catastrophic injuries, is totally blind and has had many
surgeries. We were lucky enough to get an attorney to take his case to court.
The defense did not want my son in court because they thought he was a minor
and that might sway people. The jury said we were entitled to $7 million, but
the defense invoked MICRA and it was reduced to $250,000, $4,000 for each year
of my son’s life expectancy.”
Ms. Olsen said
that, thanks to MICRA, medical malpractice is the only area of liability law
where there’s an absolute cap on judgments. “It’s not doctors versus lawyers,”
she said. “It’s patients against insurance companies. Insurance companies have
spent so much money against this because they don’t want to have to pay.
Medical errors are the third most common cause of death in the U.S., behind
cancer and heart disease. Four hundred thousand people per year are affected by
this.”
The case against
Prop. 46 was presented by Jay Hansen, chief strategic officer for the
California Medical Association. “If this measure were just about the MICRA cap, we’d be having a different
conversation,” he said. “But the measure has a lot of things, including drug
and alcohol testing for doctors and using the CURES database, which is not
supposed to work in real time. The Service Employees’ International Union (SEIU),
American Federation of State, County and Municipal Employees (AFSCME), the
AFL-CIO, the NAACP and Planned Parenthood are all opposed. The Los Angeles
County Democratic Party also voted to oppose it, as did the LGBT [Queer] Caucus
of the California Democratic Party, because we’re concerned about the [lack of]
privacy of the CURES database.”
Like the
ubiquitous TV commercials against Prop. 46, Hansen portrayed the measure as an
attempt by sinister trial lawyers to milk the system for scads of money by filing
medical malpractice suits without the MICRA cap to restrain them. “The
California School Boards Association estimated the cost to them would be $2
million per year,” he said. He also accused the proponents of eliminating a
requirement in the first draft of their initiative that nurses would have to
report doctors apparently under the influence of alcohol or drugs so the
California Nurses’ Association would endorse the initiative. As it stands, he
said, “the only people who are drug- or alcohol-tested are doctors who have
hospital privileges, not all doctors.”
Hansen also said
that changes to laws like MICRA should be made by state legislators and the
governor, not at the ballot box through an initiative — which provoked angry
comments from supporters to the effect that legislators are so dependent on
campaign contributions from insurance companies they won’t even consider
raising MICRA. This provoked Hansen to tell a story about how, when former Los
Angeles Mayor Antonio Villaraigosa was speaker of the California Assembly, “the
CMA agreed to raise [the MICRA cap] to $500,000, but the trial lawyers demanded
$1 million.” He also said that current Assembly Speaker Toni Atkins was against
Prop. 46.
That provoked
former Democrats for Equality president Craig Roberts to text Atkins to see if
she had really taken a position on the measure. She texted that she hadn’t, but
later sent an e-mail to another club member stating that, though she had no
official position on the rest of the proposition, her experience as former
director of the now-defunct Womancare women’s health clinic and former board
member of Planned Parenthood — both of which, she said, “couldn’t get
malpractice insurance until MICRA” — had made her dead-set against raising the
MICRA cap at all.
“You have a
great deal of antipathy towards lawyers,” club member Kelli King said to
Hansen. “Who’s on the other side? Insurance companies. There are scumbag
lawyers, but there are also scumbag insurance companies. Lawyers at least
potentially represent the little guys against the insurance companies.”
“This wouldn’t
be in front of us if the trial lawyers hadn’t raised $8 million to put it on
the ballot,” Hansen responded. “It’s important with any ballot measure to see
who’s paying for it. All the money came from attorneys. I know the trial
lawyers’ lobbyists and I work with them. I also know what their motives are.”
Hansen added that while there were three insurance companies contributing to No
on 46, “they aren’t health insurance
companies,” and in answer to another audience question he said drug companies
weren’t giving to No on 46 either.
“It is the insurance companies fronting the money” to
defeat 46, said Karen Olson. “They have millions of dollars to fight this. The
reason they’ve put so much money into [No on 46] is they get to keep 45 percent
of all malpractice premium payments, the highest percentage of any type of
insurance. The doctors should be on our side.”
The
Other Provisions
While the MICRA
cap received the lion’s share of attention from panelists and club members
alike, the other provisions of Prop. 46 — the requirement that doctors be
tested for alcohol and drugs and the mandate for doctors to register for the
CURES database also came up in the discussion. The California branch of the
American Civil Liberties Union (ACLU) opposes Prop. 46 because, according to
its Web site (https://www.aclunc.org/article/no-proposition-46-medical-malpractice-lawsuits-cap-and-drug-testing-doctors-initiative),
“The initiative would require physicians to submit to random, suspicionless
drug testing, which is an unwarranted intrusion into their right to privacy
protected by the Fourth Amendment and the California Constitution. Random,
suspicionless drug testing fails to deter drug use and is unnecessarily
intrusive, particularly given the less-intrusive alternative approach of
testing individuals only when there is individualized suspicion of impairment
or another particularized reason to do so.”
The
panelists also disagreed over whether the CURES database, on which the
initiative relies to identify prescription drug abusers who are
“doctor-shopping” for painkillers and other commonly abused drugs, is ready for
prime time. Hansen’s argument that CURES is “not supposed to work in real time”
referenced the fact that CURES was originally set up as an aid to long-term
investigations and prosecutions of doctors who were enabling prescription drug
abusers. It wasn’t, he said, supposed to work the way Prop. 46 wants to use it:
to identify patients seeing more than one doctor for controlled substances and
shut off their access to those drugs. He also questioned whether CURES would be
safe from hackers and others out to steal confidential patient information.
“The legislature
has been working really hard since 2009 to make sure CURES is working and will
be secure,” said Chris Ward, who’s on the staff of State Senator Marty Block —
though he was speaking for himself and not as Block’s representative. “We
anticipate the database will be available on January 1, 2015. I believe the
privacy concerns are unfounded. The encryption and security are the tightest
available.”
“It’s a law
enforcement database, not a medical database,” Hansen snapped back.
“Initiatives become effective the day they are passed. The CMA supports making
CURES operational, and it’s being paid for by a surcharge on doctors’ medical
license fees, but it won’t be operational until July 2016.”
There was also a
debate over whether Proposition 46 violated the single-subject rule — the
provision of the California Constitution that says, “An initiative measure
embracing more than one subject may not be submitted to the electors or have
any effect.” The California ACLU claimed that Prop. 46 does too many things to
meet the single-subject requirement. “Here, voters may well support some parts
of this initiative but oppose other parts of it,” the ACLU’s Web site stated.
“Californians should be able to vote their conscience separately on each of
these individual provisions.”
Proponents of
Prop. 46 argue that their initiative does
deal with just one subject: protecting California patients from medical abuses,
whether caused by alcohol- or drug-using doctors, prescription drug abuse or
medical malpractice. But several club members expressed precisely the sort of
frustration the ACLU was complaining about; people who might be inclined to
support the drug- and alcohol-testing requirements on physicians might oppose
changing the MICRA cap, or vice versa.
Club member and
attorney Bryan Wildenthal said Prop. 46 “packages together four separate
things, including the invasion of privacy, MICRA and CURES.” He acknowledged
the concern of Prop. 46’s supporters “that professionals don’t police
themselves,” but questioned whether it was appropriate for an initiative to
mandate that people use a particular database and said the smorgasbord of
issues crammed into Prop. 46 was “liable to have us debating at cross-purposes.”
“I was actually
inclined to vote for this until tonight’s forum,” said former club president
Roberts in explaining why he was making a motion for the club to take no
position on it. “I respect Toni’s opinion. I’ve known her 20 years and her
heart is still in the right place.”
David Warmoth,
current president of the Democrats for Equality, said he would vote against
Roberts’ motion because “we have a legislature that on these particular issues
is bombarded with lots of money and lots of competing lobbying that will
prevent them from acting on any of these issues.” Eventually, however, the club
passed Roberts’ “no position” motion by a voice vote; though no one asked for a
roll call, the club seemed to be about 2-1 in favor of it.
