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

acp new logoA guest column by the American College of Physicians, exclusive to

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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