The California ballot initiative: Protecting patients or letting in a Trojan horse?

The California ballot initiative: Protecting patients or letting in a Trojan horse?A guest column by the American College of Physicians, exclusive to KevinMD.com.

Physicians in California are mobilizing to oppose an initiative on the November ballot that will raise the cap on non-economic damages in medical malpractice cases. The current cap of $250,000 is part of California’s Medical Injury Compensation Reform Act, or MICRA. Adopted in 1975, MICRA has been cited as a model for medical professional liability reform. Many other states have passed similar laws setting caps, but a federal version failed to make it through Congress. The California ballot initiative would raise that state’s cap to an inflation-adjusted $1.1 million, with future adjustments for inflation.

Not surprisingly, physicians are lining up with professional liability insurers and other health care providers to lobby for defeat of the initiative, while trial lawyers and advocacy groups urge its passage. I won’t detail each side’s rationales but refer you to recent articles in the Los Angeles Times, the Washington Post, and the San Francisco Chronicle to give you a general idea.

Unfortunately, like many important and controversial issues, the causes of the “medical liability crisis” have been dumbed down and oversimplified: It’s (pick one or more) the greedy trial attorneys, the greedy professional liability insurers, or “bad doctors” who are to blame for the problem. Of course, it is much more complicated than that. For that matter, there are no simple solutions, either. Even if laws such as MICRA help to stabilize professional liability insurance premiums and reduce the number of frivolous suits, they do not reassure a physician enough to reduce the practice of defensive medicine. Moreover, while fewer bogus lawsuits is a worthwhile goal, how do we make the system more efficient so that those who truly suffer because of medical malpractice get the compensation that they need?

The American College of Physicians recently released a policy paper titled Medical Liability Reform: Innovative Solutions for a New Health Care System. In releasing this paper, ACP recognizes the complex nature of the problem and bases its recommendations on an extensive review of the evidence (there are 77 references). In the paper, the College reaffirms its support for MICRA-style reforms, including a $250,000 cap on non-economic damages, but also proposes other measures to address the multiple dimensions of this problem. The recommendations include a reemphasis on patient safety, reviewing how insurers set rates, and setting standards for expert witnesses. Most importantly, the paper recommends looking at alternatives to traditional tort reforms, including creating “safe harbors” for physicians who practice according to nationally accepted guidelines, and pilot testing health courts.

If you scan the titles of the California ballot initiatives to find the one on non-economic damages, it will not be easy. That’s because the language on caps is buried in an initiative titled The Troy and Alana Pack Patient Safety Act of 2014. The primary focus of the initiative is an issue that some physicians might find even more disturbing than the raising of caps. The “Safety Act” calls for mandatory drug and alcohol tests of physicians by hospitals on a random basis as well as “immediately upon the occurrence of an adverse event.”

Many physicians will see this proposal as another slap in the face, occurring at a time when members of the profession already feel that they are under siege.  Even those who are not as offended have reason for concern, not just about what is in the proposal but also what is not.  While the Act calls for the process of drug testing to comply with 49 Code of Federal Regulations, Part 40, which covers drug and alcohol testing in the transportation workplace, it appears to single out physicians in ways that similar programs that cover the oft-cited airplane pilots and truck drivers do not.

What about drug testing other members of the health care team whose impairment would also threaten patient safety? Who determines what constitutes “random testing?” Where is the language about due process and timely resolution of disciplinary actions? This is important because, unlike suspending a pilot or truck driver without pay, suspension of a physician’s license means more than not paying the physician – it also means no revenue to pay the physician’s staff and other overhead expenses. Where is the mention of reinstituting the physician health program that California disbanded in 2008? What is the evidence that this Act would actually make patients safer?

There are other unanswered questions and potential unintended consequences of this act. One has to wonder why the real problem of patient harm resulting from impaired health care providers isn’t being addressed in a more thoughtful manner than this “feel-good” ballot initiative. It seems to me that such an important issue should not be decided based on who has the more convincing print or broadcast ads. A cynic would note that the language in the initiative is crafted in such a way that non-physician providers and hospitals would not find objectionable. (For example, all costs of the testing program would be borne by physicians, not hospitals.)

Also, what do caps on non-economic damages have to do with patient safety? One could argue that this ballot initiative is a Trojan horse, with the language on caps hidden in what at first glance is a “no brainer” proposal.

If this ballot initiative passes, plaintiffs’ lawyers may win in more ways than one. Not only will caps on non-economic damages go up, but the attorneys may also end up with a new business line — representing physicians who are treated unfairly by California’s new drug and alcohol testing policy.

Yul Ejnes is an internal medicine physician and a past chair, board of regents, American College of Physicians. His statements do not necessarily reflect official policies of ACP.

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  • Marian Hollingsworth

    I find it interesting that Dr. Ejnes would oppose efforts and technology that would reduce medical harm. In July of 2008, Dr. Ejnes testified at a congressional hearing regarding the need for a federal interoperable health information technology program (IT) “to improve clinical outcomes and reduce costs in the healthcare system.” In his testimony, he cited the number of deaths due to medical errors and pointed out that lives could be saved through this medical technology. What Dr. Ejnes fails to realize in this editorial, is that now he claims to be against information technology that would prevent harm and save lives. The Pack Act would set up an electronic database that would instantly let doctors know if a patient had already obtained powerful painkillers from another practitioner. If he is against medical harm and subsequent costs, wouldn’t he be in favor of random drug testing so that impaired doctors wouldn’t be able to enter the operating room and potentially harm a patient? At this hearing, Dr. Ejnes seemed to want to pull the medical profession out of archaic practices, so why would he want to retain caps on non-economic damages that were put in place in the 1970′s? If Dr. Ejnes is really in favor updating the medical community to prevent patient harm and rising costs, he would support the Pack Act.

  • Lee T

    What does it say that the doctors, the people who order all the blood and urine tests, are afraid to take them?

    Either the doctors believe they are inaccurate or that they are accurate.

    If these tests are inaccurate, why order them on patients?

    leeIf they are accurate, why are they so afraid? And if they are afraid, isn’t that more of a reason to do them?

  • chipwagar

    What do caps on non-economic damages have to do with patient safety, the author asks? A lot. First, all the evasions and self-serving blather about concern for patient safety are the real Trojan horse here. Self policing and professional self-regulation has failed miserably as a self-corrective to dangerous medical behavior, including, yes, intoxication. All the while, patients truly injured or killed by medical malpractice are prevented from receiving anything remotely like the compensatory damages one would receive for exactly the same injuries or death if it were caused by anyone else; like the author’s negligent driving of his personal automobile. It’s not surprising that physicians and hospitals and the entire medical industry is lining up to defeat a ballot measure that would strip them of the privileged status and immunities they have enjoyed for years at the expense of medical malpractice victims. Manufacturers didn’t put child proof caps on medicine bottles out of the goodness of their hearts. They did it because they were getting sued for product liability damages when children died. External correctives like compensating victims of negligence do a lot to motivate change, reform and safeguards that vague promises fail to do. The medical industry is like a spoiled child who doesn’t want to face the music when they do wrong. Everyone else has to pay for their negligence, why shouldn’t they?

  • T H

    I would LIKE to be tested on a regular basis. I would LIKE a process that is fair and has a quick resolution. Drug testing holds no fear for me…. what I fear is being held responsible for the alcoholics and drug users who I entrust to carry out the orders I write: the pharmacists, the RN staff, the physical therapists. If they do something wrong while they are under the influence, I can be held liable.

    And everyone knows that USAF/USN/USMC/USA pilots aren’t mortals. You’ve the flight suits to prove it. I was a military doc for quite some time and watched 3rd MAW pilots do some amazing… and amazingly stupid… things. (c;

  • John James

    The medical industry is broken for most physicians and especially for patients who face inordinate risk of harm with every hospitalization. The ultimate solution is for physicians and patients to work together to reduce harm to patients. That is going to require some courageous doctors who are willing to admit the huge problem of harm from medical errors and then be willing to give up some autonomy to change the paradigm under which they operate. That change is not on the horizon, so until it is an effective tort system is needed to give patients or their survivors a change to level the playing field. An effective tort system means that there is going to be a substantial penalty well in excess of $250,000 when a patient is seriously harmed or killed. The non-economic cost of losing a loved one, especially a son, to medical error is unbounded. Doctors must join us patients, not oppose real accountability.

  • SuzanShinazyRN

    I agree. Nurses are drug tested, why are physicians claiming they are not?