Tue, Apr

First Person: The Facts about Prop 46


BACKTALK-Rosemary Jenkins got many facts wrong in her CityWatch column about Proposition 46, California’s patient safety initiative on the November ballot (“Confusing Prop 46: Could Provide Disastrous Consequences”). I am the main proponent of Prop 46, and I’m here to tell you there’s nothing confusing about the actual statute voters will consider, as can be found in the Voter Information Guide.

Prop 46 will update California’s 39-year-old cap on compensation for non-economic damages for victims of medical negligence, to give it the same economic value it had when it was enacted in 1975 (it has not changed since, and it always has been the lowest such cap in the nation). Ms. Jenkins wrote that the adjustment will be “based in part upon inflation figures.”

No, it will be based entirely on inflation. Prop 46 reads the cap “shall be adjusted to reflect any increase in inflation as measured by the Consumer Price Index published by the United States Bureau of Labor Statistics since the cap was enacted.” (You can read the statute here.) Inflation has eroded the value of the cap so much that $250,000 in 1975 dollars is worth less than $60,000 today.

Ms. Jenkins wrote that $250,000 “seemed reasonable at the time” it was enacted. Well, it certainly did to the doctors, hospitals and insurance companies that supported it. And yet those same entities have contributed nearly $60 million to oppose updating the cap so that it will have the exact same value in today’s dollars. If $250,000 was “reasonable” then, how is the equivalent amount somehow unreasonable today?

Ms. Jenkins wrote raising the cap “would raise doctor and clinic premiums substantially.” But she does not offer evidence to support this claim, because there is none. In recent years, three states – Illinois, Georgia and Missouri – have had similar caps not just raised but removed entirely by their state supreme court. In all three states, average medical malpractice premiums are now the same or lower compared to when the cap was in effect, according to Medical Liability Monitor.

In addition, California’s Proposition 103 gives the state Insurance Commissioner authority to reduce malpractice rate increases proposed by insurers. This protection for doctors did not exist when the $250,000 cap was implemented, and it will ensure doctors are not subject to unjustifiable rate increases in the future.

Ms. Jenkins wrote the Federal Tort Claims Act does not cover medical malpractice insurance for community health centers and clinics. This is patently false. Any such facility that receives federal funding is eligible for free malpractice coverage, with the federal government paying all costs of defending claims and any damages awarded to victims of harm. The clinic has no malpractice-related expenses whatsoever.

The Community Clinic Association of Los Angeles County spent $9,325 on all insurance, including property insurance, in 2011, the most recent year for which federal tax documents are available. That was one-third of one percent of the organization’s total expenses.

Prop 46 requires random drug and alcohol testing of California doctors with hospital admitting privileges, and it requires testing of physicians involved with an adverse event, such as an unexpected death, or surgery performed on the wrong body part. Prop 46 requires the Medical Board  of California to suspend a doctor after a positive test, pending investigation, and to take disciplinary action if the doctor was impaired while on duty

Ms. Jenkins said doctors will have just 12 hours after they are contacted to get drug tested. But the 12-hour requirement applies only to testing after adverse events. And Prop 46 says failure to submit to testing within 12 hours after learning of an adverse event “may [emphasis added] be cause for suspension of the physician’s license.” Such a suspension is not automatic if the doctor presents a compelling reason why he or she couldn’t submit to testing.

Prop 46 will also require doctors to consult a statewide prescription database, but only when prescribing certain potentially-addictive narcotics. Why? To make sure the patient has not already received them from another physician. I know only too well what can happen when addicts go “doctor shopping” to get more drugs. My two children, Troy and Alana, were 10 and 7 when they were run down and killed by a doctor-shopping prescription drug abuser. She had obtained hundreds of pills from several different doctors. Not one of them bothered to check that she had already scored prescriptions from their peers.

Ms. Jenkins wrote Prop 46 would mean “an addition of approximately 200,000 new patients in the data base.” Again, patently false. The database already exists; the patients are already there. She wrote if the database is not available because of a technical problem, “the physician would be presented with quite a conundrum” and would have to either wait for the database to become available or face the possibility of a penalty by issuing a prescription. Not true. Prop 46 requires doctors to consult the database, and if it is not available, the doctor has fulfilled the requirement of consulting.

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Ms. Jenkins wrote the requirement to check the database “does not take into consideration other healthcare professionals who work with patients, such as nurses, in-take administrators, etc.” There’s a good reason for that: none of those people can actually prescribe drugs. She also wrote Prop 46 “does not provide for pharmacists to make the same check.” Completely false. Prop 46 specifically includes pharmacists.

Ms. Jenkins has made a staggering number of errors in forming her opinion about a vitally important topic. We live in a nation where up to 440,000 patients die each year of preventable medical errors, according to the Journal of Patient Safety. Medical negligence in our hospitals is now the nation’s third leading cause of death, behind only cancer and heart disease. Any of us could become a victim of malpractice. You could be harmed by a doctor impaired by drugs or alcohol. Your life could be ruined by a prescription drug addict strung out on too many drugs obtained by doctor shopping.

Before you make your decision about Prop 46, consider the actual facts.

(Bob Pack of Danville is the main proponent of Proposition 46. His children were killed when a doctor-shopping prescription drug addict ran them down on a neighborhood sidewalk. Then he learned that an antiquated state law put a limit on the value of their life at $250,000. He won’t stop until MICRA is fixed.






Vol 12 Issue 76

Pub: Sep 19, 2014


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