The nation is watching as money begins to pour into campaigns for, and especially against, a ballot initiative called Proposition 46 which is set to be on the November 4th ballot in California. The initiative would do three things:
- It would raise the caps on non-economic damages in malpractice cases from $250,000 to $1.1M.
- It would require doctors to submit to random drug and alcohol testing.
- It would require doctors to consult a state administered prescription drug database before prescribing certain drugs to first time patients.
If that sounds like three initiatives to you, you’re not alone. Much of the opposition to the initiative has been focused on the fact that it is so broad that it’s not really a single unified proposition at all. But this isn’t a mistake. The groups responsible for creating the initiative, trial lawyers and consumer watchdog organizations, set out first and foremost to raise caps on non-economic damages. But to sweeten the deal and create a proposition more likely to win the popular vote, after consulting several focus groups, they added on the drug and alcohol testing and drug database provisions. These were the stand out issues that proved popular in research and the ones that they felt they could sell the Prop 46 on.
Opponents, of whom there are many, have seen this as an unscrupulous strategy. Dr. Richard Thorp, president of the California Medical Association, described it as a “money grab by trial lawyers.” Further, noting that the trial lawyers have shown no willingness to consider a drug and alcohol testing measure on its own merits and independent of the question of damage caps, many have concluded that the initiative isn’t really about patient safety at all but about the coffers that would open up for trial lawyers if the non-economic damage caps raised by more than 500% overnight. Proponents of the measure respond by pointing out that what they are suggesting is merely indexing the cap to inflation over the last 39 years since it was put in place in 1975. Nevertheless, a 500%+ increase is a drastic increase, and it would almost certainly have a destabilizing effect on the malpractice market at least in the short term.
Financial support for the proposition comes almost entirely from trial lawyers, while grassroots and organizational support also comes from consumer advocacy groups, victims of malpractice, and volunteers. The supporters do not have the budget to campaign for the proposition that opponents do given that major monetary support comes from only one source. However, the resources they do have, which are not insubstantial, they’ve begun spending on videos like the one below, press releases accusing insurance companies of obscene profits, and a steady trickle of stories released about cases where an impaired doctor harmed a patient.
Opposition to the initiative has ratcheted up substantially in the last few weeks with television and radio ads hitting the airwaves in addition to the longer videos like the one below and other media campaigns. While it is true that much of the opposition side’s funding comes from malpractice insurance companies, a fact that stands to reason since they are the ones who would lose money if damage caps are increased, there is actually a rather broad coalition of opposition to Prop 46. Some oppose it because of the way it forces three separate policy issues together, some on privacy or civil rights grounds, some out of fear of the administrative cost of implementing new programs that they see as over-broad or insufficiently defined, and some because they fear rising malpractice insurance costs, which would then trickle down to patients and mean more expensive healthcare for everyone.
Groups that oppose the proposition include malpractice insurers, hospitals, the ACLU, unions, the California Chamber of Commerce, and state medical and dental associations. Bringing unions, big corporations, and the ACLU together on an issue is quite a feat. But, adding insult to injury for proponents of the measure, in mid-July the Executive Board of the California Democratic Party voted to remain neutral on Proposition 46. This effectively means that the trial lawyers will receive no political or financial support from those they supposed might be their political allies.
All that said, who knows what will happen in the polls? Will the public understand the measure? Will they be put off by being asked to cast a single vote for three distinct policy imperatives? Gale Kaufman, a senior strategist for the opposition believes so. She recently said, “In my experience, they’ve woefully underestimated the intelligence of California voters. They know deceptive window-dressing when they see it. Our research shows that, when voters see three issues, they don’t understand what they’re all doing in one measure but they do intuitively understand it’s going to cost them lots of money. Personally, I think they’ve outsmarted themselves on this one.”
Others, noting how easy it is to make the argument for why doctors should have to “pee in a cup” when bus drivers, athletes, and even many corporate employees already do, think the ballot will likely sail through and that opposing it will be a bit like walking through a minefield if the opponents are going to avoid the appearance of simply trying to avoid accountability.
One thing is for sure though: the whole country will be watching. Proposition 46 is expected to overshadow all other issues on the ballot, especially given California Governor Jerry Brown’s expected easy re-election. If it passes California will be setting a major precedent as the first state to require random drug and alcohol tests of all doctors. Further, raising caps on non-economic damages and tying the hike to inflation after nearly 40 years with a static cap, even as other states are overturning caps altogether, would be an interesting new wrinkle in the ever-evolving tort reform situation in this country. Regardless of what happens we’ll likely revisit the question shortly before or after the election to asses and evaluate what impact the vote will have.
Here is a video put out by opponents of the proposition.
And here is one from the proponents. Note the difference in tone.