Proposition 46, what is it?
Proposition 46 is an initiative that will be on the ballot in California this coming Tuesday, November 4. The initiative has garnered widespread attention from both critics and proponents. The most outspoken critics have been doctors, malpractice insurers, and others in the healthcare industry, while the most vociferous proponents have been trial lawyers.
Prop 46 would do several things:
- The main thing Prop 46 is known for is the provision to increase the state cap on non-economic damages in malpractice suits. Currently these kinds of damages, often referred to as pain and suffering damages, are limited to $250k in California. Prop 46 would increase this amount to just over $1M.
- Secondly, Prop 46 contains a provision that would require doctors to submit to state mandated random drug and alcohol testing, with positive results being reported to the California Medical Board.
- Finally, Prop 46 would mandate that doctors utilize a state run database before prescribing certain types of drugs in an effort to minimize “doctor shopping.”
Why should you care?
Well, it depends. If you are a healthcare professional in the state of California obviously Proposition 46 has a direct bearing on you and your vocation. Proponents of the measure point out that what they are really talking about is just adjusting the current non-economic damages cap, which was set in 1976, for inflation. In other words, they claim that the new $1.1M cap is equivalent in 2014 dollars to $250,000 in 1976.
However, while most people agree that some type of adjustment to the cap should be considered, opponents of the measure point out that a more than quadrupling of the limit overnight means a huge shock to the medical malpractice market. Many fear that rates will skyrocket if insurers are asked to shoulder a fourfold increase in liability risk in one fell swoop. Insurers and doctors alike feel that if an increase is needed it should be modest and/or incremental.
In addition to concerns over the radical nature of the cap adjustment opponents strongly oppose the bundling of seemingly disparate measures into one proposition. There is really no reason to tie these three issues together, and particularly to include the damage cap adjustment with the other two. In fact, the trial lawyers who wrote the bill have admitted that they added the drug testing provision to the damage cap as a political sweetener after polling test groups in hopes of gaining more votes. However, this plan may have backfired, and this is where Prop 46 may have interest even for those outside of California.
While the crafters of the legislation thought that the idea of drug and alcohol testing for doctors would be popular and seem like a common sense move to most voters, they apparently hadn’t considered the overreach issues involved in a state mandated provision of this type. It’s true that many corporations, sports teams, and other employers require random drug, and in some cases, alcohol testing. But those are agreements between a private employer and an employee, not state mandated systems that keeps records on private citizens. It turns out that isn’t as easy a sell as expected, and now even groups like the ACLU are raising objections.
Likewise, the prescription drug database presents serious privacy concerns. While the desire to prevent people from obtaining unsafe amounts of powerful drugs is understandable many don’t feel that it justifies turning over private health information to a state run database. What happens if the database is breached? What are the potential dangers of centralizing so much sensitive medical information? These are questions that opponents of the proposition have been raising in the course of a very costly awareness campaign, and Californians, and even those outside of California are paying attention.
Even if you aren’t a Californian Proposition 46 is something worth paying attention to. Anytime a big, influential state makes changes to laws effecting malpractice or the practice of medicine generally there is potential for precedents to be set. For instance, if Proposition 46 is defeated it may lead advocates of damage cap reform in other states to consider more modest proposals. Likewise the privacy issues discussed above could set the tone for state involvement in private medical practice in other states, or could even become an impetus for court challenges and decisions.
As of right now we don’t think Prop 46 is especially likely to pass, but anything can happen in a California election. Still, opponents have far outspent proponents, and their message seems to be getting through. We’ll be watching the polls Tuesday and will have analysis for you after the polls close regardless of which way it goes.