CA Prop 46 – A Flawed Bill With Negative Impacts On Healthcare

Disclosure: I attended a luncheon hosted by No On 46 in order to learn more about this bill. I was not provided any compensation for this post, and all opinions expressed are my own based on my personal healthcare experiences.

Nearly a month ago, I attended BlogHer ’14 in San Jose. Typically I come home from BlogHer energized and inspired to write, write, write. And I did have some of that, but mostly my mind has been focused on the impending birth of my baby (ANY DAY NOW!).

With that said, I attended a number of healthcare-focused panels during BlogHer. After working* in a hospital in a rural area for several years and then spending an extensive amount of time in hospitals with my son while he’s been fighting Leukemia, I’ve learned a few things about the healthcare system. Still, I didn’t realize how relevant this bill was to me until I learned more about it at BlogHer.

If you’re a California voter, I hope you will take the time to read this post and learn more about this bill (the full text of which can be found here), as it will have impacts on everyone in the state who utilizes the healthcare system. And then, of course, cast your vote in November!


The three main components of California Proposition 46 are:

  • It raises the cap on the “pain and suffering” portion of medical liability rewards from $250,000 to $1.1 million.
  • It requires both random drug and alcohol testing, as well as routine testing of physicians who are involved in any medical procedure that has an associated “adverse event.”
  • It requires practitioners and prescription drug providers to consult a database prior to prescribing controlled substances to patients.

The rationale behind this bill is that it will deter or prevent prescription medication abuse by patients who “doctor shop” in order to get controlled substances prescribed to them, and hold medical care providers accountable for any fallout events that could result from medication and drug abuse (by both physicians and patients). This is supposed to increase patient and public safety by decreasing the number of adverse events associated with healthcare procedures, and thereby decrease the number of lawsuits. The bill was created in response to an incident in which two children were killed by a driver under the influence of alcohol and prescription painkillers. (Please take the time to read that article – it will provide a lot of context for the motivation behind the bill. After reading it, I would ask that you contemplate whether this bill would actually have prevented the death of those children.)

On the surface, the bill sounds like it addresses a number of issues and would save lives. But, as most of us voters know, there are many bills that make it onto the ballot every year that aim to do something good, but fail to deliver due to flaws in practical application. Prop 46 is one of these flawed bills.

I’ll take this point by point and offer my perspective, as both an individual who has worked in the healthcare system and someone who uses that system extensively, on why this bill is significantly flawed and would actually end up doing more harm than good here in California.

1. It raises the cap on the “pain and suffering” portion of medical malpractice rewards from $250,000 to $1million.

If the cap on what can be awarded to those who file a lawsuit against medical practitioners and hospitals is raised, that additional award money has to come from somewhere. Medical malpractice suits WILL happen, and to accommodate the increased amount of funds that will be awarded, providers and hospitals will need to increase their liability insurance coverage. This will cost them more, and they will pass the cost onto patients by increasing the price tag on procedures or insurance premiums.

What I know from processing contracts and facilitating physician recruitment in a rural California hospital is this: many physicians, particularly specialists, end up closing their private practices due to the high overhead of liability insurance. They move to practicing medicine in HMOs or they leave the state. Hospital systems can negotiate better insurance rates for liability insurance due to the bulk amount they require – independent physicians do not have that bargaining power and end up paying more for liability insurance (even if they don’t end up in lawsuits). This is why seeing independent specialists and doctors in private practice costs patients more.

This hits low-cost clinics – like Planned Parenthood – particularly hard. Many clinics (primarily used by low-income individuals, teens, those without insurance, and minorities) are already struggling to keep their doors open and retain physicians to provide services with little or no pay, and offer quality care to patients.

Note: current law specifies unlimited awards for a patient’s medical costs, punitive damages against the practitioners, and lost wages/earning potential associated with a medical liability case. The current cap of $250,000 only applies to pain and suffering awards.

2. It requires both random and routine drug and alcohol testing of physicians who are involved in any medical procedure that has an associated “adverse event.”

I’m not against drug testing of medical practitioners – patient safety is absolutely paramount and I certainly don’t want someone under the influence in charge of my health! However, more drug testing equals higher costs – the bill as written requires hospitals to bill physicians for these costs. The costs are there whether the practitioners are testing positive or negative for substances, and again increases the cost to physicians of practicing medicine in California.

Aside from the cost factor, the bill would require that practitioners who are involved in a case that resulted in an adverse event (even if that event turned out to be accidental and not related to physician negligence) be suspended from practicing medicine until positive results are investigated [see Section 2350.30(b)].

So, for example: a patient claims to have suffered extra injury from a surgery but it’s not reported until after the procedure (days or weeks or even years after – a statute of limitations on the discovery of adverse events does not appear to be written into the bill). The medical professionals involved in the surgery are sent for drug testing – after the fact (because time travel hasn’t been invented yet). Perhaps they test positive for Vicodin (an opioid) in their system due to a dental procedure they had that day (the day the drug testing is required, which is who knows how long AFTER the surgery on the patient) and said Vicodin wasn’t prescribed by a third party or it was leftover from a prior procedure. (Or maybe the physician smoked marijuana to relax after a particularly intense day of surgeries and they don’t have a prescription!) Their license is suspended until the courts investigate the practitioner and obtain proof that they were not under the influence during the surgery.

How in the world is anyone to know if the physician was under the influence while practicing medicine if the drug testing occurs after the fact? No one can know that, so the (possibly unintended) result of requiring drug testing is that medical practitioners involved in adverse events are presumed to have been under the influence and punished for being under the influence (due to the temporary license suspension) even if it’s impossible to prove that drugs were not involved in the event.

[Note: Prop 46 defines “drugs” as marijuana, cocaine, amphetamines, opiates, and phencyclidine (PCP).]

3. It requires practitioners and prescription drug providers to consult a government-run database prior to prescribing controlled substances to patients.

This portion of the bill is intended to thwart drug-seekers who abuse medications such as prescription painkillers by visiting multiple doctors in order to obtain multiple prescriptions. Any time a medication from a list of controlled substances is prescribed by a physician or the prescription is filled at a pharmacy, the medical professional must first check the CURES database to see if that medication or something similar has been given to that patient before and how often and by whom.

Patient privacy comes into play here because any physician or pharmacist who logs into the database can see your medical history – not just your primary care doctor. Also, law enforcement has access to the database, regardless of the fact that they do not have pharmaceutical training.

In addition, the database is a government-owned and run program. The technology is not up-to-date; it’s slow and unreliable and cannot currently withstand the additional load to servers that would occur if every physician and pharmacist in the state was required to log in every time a prescription was being written or filled. (In September of 2013, Senate Bill 809 was introduced and passed into law, which required upgrades to the CURES database; however, that process was expected to take two years. If Prop 46 passes this fall, it goes into effect immediately – about a year before the upgrades to the database are due to be completed.)

When a physician or pharmacist cannot log into CURES due to a slow server or a crashing system, patients (including those who are NOT drug seekers) will be denied prescription pain relievers. Once again, this issue would hit rural areas the hardest because technology is notoriously behind the times. Even if rural hospitals and clinics have up-to-date physical hardware, internet speeds are rarely optimal.


One last thing that I feel is important to point out as a strong indicator that Californians should vote no on Prop 46 is the list of supporters (1 senator and 3 organizations) vs. opponents (I’m not actually going to count that gigantic list but it includes officials, doctors and medical groups, medical societies and business groups, labor unions, hospitals and health centers, insurance companies, and other groups such as the ACLU and the Civil Justice Association of California).

* My work in a rural northern California hospital included legal contract tracking and processing and physician recruitment support. I worked with the Business Development, Finance, Risk Management, and Legal departments during my tenure. The hospital’s patient population overwhelmingly consisted of low income people with Medicare coverage and due to the rising costs of healthcare combined with low reimbursement rates from insurance companies, the hospital struggled to stay in operation. Further, it was extremely difficult to recruit quality, experienced physicians to the area due to low compensation compared to the high cost of practicing medicine.

13 thoughts on “CA Prop 46 – A Flawed Bill With Negative Impacts On Healthcare”

  1. I left a comment yesterday and it didn’t look like it went through. I don’t know if you need to approve these before they post or if the website wasn’t working, so I thought I’d check in again.

      1. I would have no idea why…how would I know what terms your spam filter filters? Are you filtering out everything that promotes the truth about Prop 46? I can very easily just lift your blog and refute it publicly on another blog and then tweet about it. I tried to write it as nicely as I could on your blog.

        1. You’ve written the same rhetoric on multiple blogs and thus the blogging system has tagged you as a spammer.

          I am not approving your comment due to your use of passive aggressive insults toward me and emotional appeal rather than fact and reason to make your point. You are free to blog your opinion about Prop 46 at your discretion; however, “lifting” my blog is copyright infringement and criminal activity will do you no good in convincing anyone of the validity of your point.

          1. LOL. If “the blogging system” has tagged me as a spammer, how is it that it’s only a problem on your blog?

            It is perfectly legal to lift portions of your blog to comment on them. If you don’t like it, sue me. You should be ashamed being so ill-informed and vomiting it to the public as though it’s truth.


  2. Hi Crystal –
    I just read your blog about Prop46. Thank you for creating discourse on a very important subject. In short, your rationale is quite flawed & is dangerous. But it is your opinion and lack of experience on the issues at hand.
    Please read below my rationale on Prop46:

    According to the Journal of Patient Safety over 400,000 men, women & children of every age, race, religion, and political affiliation are killed each year by negligent MD’s under oath to “do no harm”. While medical errors do not discriminate, MICRA does! MICRA violates a fundamental right of this country that all natural persons, male and women alike, are equal under the law.
    We know about this discrimination firsthand. Last year, our 21 month old daughter died when MD’s failed to rescue her from known complications from a matrix of errors they committed during a procedure to correct a common heart defect. She was mortally wounded in her femoral artery, which led to catastrophic blood loss, cardiac arrest and ultimately brain death.
    Its simple for MD’s to label trail attorneys as the problem because they know any better. It takes more intellectual rigor to understand the toll that medical error cast on our health system and society. Professor Sage from DePaul Law Review said in 2005 “For over a century. American physicians have regarded malpractice suits as an unjustified affronts to medical professionalism, and have directed their ire at plaintiff’s attorneys…and the legal system of which the operate.”
    We also know most MD’s have the luxury of not knowing what is like to lose a loved one to medical error. Because if they did, they would be leading the initiative to pass Prop 46. We want to report back to MDs the following: there is NOTHING slimy or opportunistic when parents seek accountability via the justice system when a negligent MD kills their child. $250,000 is so low it puts illogical burdens on victims seeking accountability that attorneys can’t take the case from a business perspective. Adjusting the cap for inflation to $1.1mm today (and going forward) it fair and reasonable. Prop 46 gets the cap back to where it was 39 years ago. MDs have adjusted their fees over 39 years, don’t victims deserve the same respect?
    Yes, no amount of money brings back a loved one, but thank God there IS money. The compensation PAID to victims is just as important as the gesture of the negligent party MAKING the payment. This is the ultimate form of accountability and ownership of the error. If there wasn’t money, should victims get the MDs license? Their right arm?
    Failing to hold negligent MD’s accountable mean ALL OF US are enablers of a health system that kills over 400,000 patients a year.
    Medical errors are the TRUE source of higher health costs. Dr. Peter Pronovost of Johns Hopkins Medicine states that “medical errors and preventable patient harm contributes to an estimated $800 billion—one third of all health care costs—spent each year on unneeded or inefficiently delivered care.” It’s not the trial attorneys jacking up costs, its the negligent MDs!
    If one wants to object to the dishonesty or deception of “ultimate sweetners” of the Prop 46 campaign, that is thier right to do so.
    However, if one uses that same dishonesty “lens” to evaluate our health system, one will find an APPALLING amount of culturally embedded dishonesty and deception when it comes to an M.D. injuring or killing a patient. The code of silence is deafening. Ask any M.D. and they will tell you about the errors they have made themselves, the errors they have seen by their peers, or know M.D.’s who should not be practicing but can’t say anything because of “the code”. Victims and their families deserve better!
    Richard Boothman, Esq. Chief Risk Officer at the University of Michigan Health System says often “The first disclosure M.D.’s must make is always to themselves; that they are not as good as they think they are. They are human and they make mistakes that harm patients.”
    Lucian Leape, M.D., a professor at Harvard’s School of Public Health and author of To Err is Human, states: “The American public has accepted the idea that a physician works in the patient’s best interest. And most physicians do. But in the past 20 years, there’s more and more evidence that we have some definite problems.”
    There’s so much evidence, in fact, that Dr. Leape now thinks it’s time for radical change — to move from a system in which patients blindly trust that the MD’s treating them are drug- and alcohol-free to a system in which MD’s are required to prove, through random and periodic drug testing, that they’re drug- and alcohol-free. Prop 46 does just this.
    “I’m very much in favor of random testing,” says Dr. Leape. “We have a responsibility to identify problem doctors and bring them into treatment.”
    Prop 46 will go a long way to improve patient safety, hold negligent M.D.’s accountable, compensate victims fairly, reduce errors and reduce costs for all.
    We hope no other family has learn all of this the way we did. Vote yes on Prop 46

    1. Thank you for your respectfully presented opposing view. I’m sorry you lost a daughter due to the medical negligence; that is heartbreaking and I wish that loss on no one. I hope your family is able to find peace.

      If this proposition was simply about medical negligence and did not combine three complex initiatives into one without providing any guidelines on improving the current infrastructure here in California to implement it, I would reconsider my stance. I agree that the healthcare system in California is flawed and often not well-run; however, I don’t believe that this proposition is going to be the answer to those issues.

      I’d also like to correct your statement that I’m lacking in experience with the issues at hand. While I haven’t personally lost someone due to medical negligence (that I know of), I worked in the hospital system and saw firsthand through my work with the Risk Management department what can happen to patients when medical errors occur. It happens and it sucks – sometimes it’s due to negligence and sometimes it’s due to a series of unfortunate events. I’ve sat in on meetings and committees that are dedicated to fixing and preventing adverse events – hospitals and medical professionals take these things very seriously.

    2. Dear WJ Westhoff
      “Prop 46 will go a long way to improve patient safety, hold negligent M.D.’s accountable, compensate victims fairly, reduce errors and reduce costs for all”
      Could you ellaborate how this law would achieve this?. Increasing the money that can be collected has nothing to do with safe practices in the hospital. People have the misconception that an adverse outcome is always a negligence or happened in bad faith most of them are not . There is also a misconception that outcomes are warranted, is incredibly difficult to diagnose let alone treat certain medical conditions.
      I think is a mistake to give these large amount of money after an adverse event especially when is a judge or a jury without medical knowledge who takes the decisions. In more civilized coutries the amount of money given is much less and the process is handled by medical committees. We are deceiving ourselves by thinking that the excess of litigation does not harm us as a society. As the blogger commented California will lose doctors with this and health care will be more expensive. This has happened in other states and this hurts the people that can not afford private insurance the most.
      Regarding your code of silence there is not such a thing, In all the prestigious hospitals of this country when somebody is incompetent is fired out very quickly I would urge you to compare how much doctors are regulated in comparison to your profession, you will be amazed.
      I think part of the medical crisis in our country comes for how malpractice is handled. It should be handled by a specialized jury and the nation should run the malpractice insurance, there should be a cap and if there is disability an agency should provide benefits.
      Regarding testing doctors for drugs and alcohol I am for it, but what bothers me the most about this law is that physicians are not given the benefit of the doubt, they can be suspended for years for a false positive test, there is a long list of over the counter medications that can give you a false positive for amphetamines, even some antibiotics can do this. The law requires that the license be suspended once a test is positive. Recovering a license may take years and finally I thought that adictions were a disease. So basically we are punishing a sick physician instead of helping him.. This may provoke a witch hunt.
      If you want to prevent medical mistakes you should be involved with the children hospital where the tragedy happened otherwise things will not change. Laws have nothing, absolute nothing with safe practices, doctors are already very afraid of suits in California and bad outcomes keep happening.

  3. I agree completely. The way the system is with California Care, I see many of my patients waiting months for surgeries then when it’s time for surgery they are denied because they didn’t pay their premium for that month or the payment didn’t post yet therefore requiring the patient to spend more time in pain and having to start over with pre ops and surgery scheduling again. Therefore wasting the doctors time and leaving the patient neglected.
    So these promises of doctors being tested during a malpractice suit is ridiculous and running patients thru Cures and the system failing then the patient is denied meds until it reboots is government control over medicine. Imagine having a loved one on hospice,a sick child with cancer only to find they can’t get their medication because Cures says no. Ridiculous. What happened to the quality of life and patient confidentiality? If you work in the medical field you already see the impact of California Care now too add this prop and vote yes would be a major downfall for all. Just my opinion. Vote no on this prop and think if it were you that was sick or your loved one would you want to be ran thru a system every time you go to the doctor. Plus yes the cost of doctors malpractice ins will fall back on patients.
    Yours truly,
    A nurse for over 20 years
    God bless

  4. Just a few quick points re this post. First and foremost, it is almost impossible to sue a doctor in Calif for malpractice right now. All injuries resulting from malpractice are capped. What general public doesn’t realize is how much it costs to litigate any malpractice case. Soooo, whatever happens, the public has NO recourse as no lawyer will take a malpractice case as they can’t afford it. I know this from personal experience. An ortho performed a knee replacement. He just happened to use a replacement over 2xs larger than needed. I was in hell for over 6 months and when I found out, not one attorney would take my case. Not worth it financially. Most just said they couldn’t afford it. I wrote the AMA and they never bother to respond much less sanctioned this dishonorable doctor, who by the way couldn’t have cared. He knew he was untouchable.
    Almost all people dealing with the public are randomly drug tested. Why should doctors be exempt? I went to a party with friends who brought their friends. When I realized these people who had been doing lines of cocaine were surgical doctors, and were due in surgery that morning…..well need I say more?

    1. I was able to find information on what you are referring to here, and you make a valid point. But even if this proposition passed and the cap on pain & suffering was increased, there will still be issues with the timeline involved in order to prove the medical malpractice case, in addition to the fact that more than half of cases are lost at trial. Increased rewards to patients and lawyers will not address those issues, so the difficulty of obtaining a lawyer to work cases such as yours will still exist – but with the added cost to Californians from the implementation of the statute (source: CA Legislative Analyst’s Office.

  5. With regard to the “cap,” please take note that… even if one believes that the cap is an effective means to keep scumbag lawyers on a leash while still fully compensating victims of hack doctors, the amount which our legislature thought to be the perfect amount was $250,000… in 1975… it is now 2014… inflation has reached us in every area… there should be no reasonable argument against the notion that a dollar is 1975 bought more than it does in 2014. An adjustment for inflation to 2014 values should be acceptable… even for those promoting the cap.

    Another point to make is that MICRA is absolutely discriminatory in its effect… the limit on pain and suffering of $250,000 is very often the limit of the entire case when it comes to the elderly and more often than it should be when it comes to women and minorities… Punitive damages? There are no punitive damages in medical malpractice cases… Lost wages? People over 65 are retired and women and minorities earn less than white males. Medical Costs? People over 65 have MediCare so there is none, and people on MediCal have none either. People, think before you vote. This law hurts the elderly and women and minorities and the poor… the very people who seem to NOT get the best medical care in the first place.

    As a medical malpractice attorney AND physician, I found it difficult to read most of the Internet posts on this topic due to the misinformation, the hatred toward lawyers, the dramatic boo hoo me posts from physicians, and such. It’s really a very simple issue when boiled down. There are of course many great opinions posted, too bad they are often obscured by many over the top replies.

    When I look into talking on a medical malpractice case, I know that physicians are not held to a standard of perfection or even to the standard of being the best or even almost the best in their field… They are held to the standard of care for their community and peers. The California legislature has made the legal procedures and rules for medical malpractice cases different from other areas, and done so with a purpose – that purpose being protection of doctors… and while there are many who see protecting doctors as a bad thing, it is not in and of itself really so… some doctors should be protected while others should not get the extra-legal shield afforded by the law. Physicians provide an extremely valuable services to the public and one that requires an enormous amount of skill and brain power to provide correctly – all in a field which is not black and white science but science and art combined – lives are at stake, opinions vary, advancements in science abound, no two patients are alike, etc. In addition, medical malpractice cases are extremely expensive and difficult to bring (properly, that is… anyone can slam together an unintelligible complaint and pay the filing fee). To make a suit “worth it,” there needs to be significant damages – and damages that would not have occurred otherwise. As a generalized example, a one month delay in treatment, that is just as effective one month later as it would have been earlier is not going to provide significant damages.

    The current law makes bringing frivolous or even low dollar suits economically destructive for an attorney… as it stands now, those of us who know what we are doing will only take the high dollar cases… the hard costs of suit are enormous (as medical experts now regularly charge upwards of $800 an hour for testimony).

    Please educate oneself about what is really going on before voting.

    – Paul

    Paul J. Molinaro, M.D., J.D.
    Attorney at Law, Physician

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