Video Voter Series: Proposition 46

Summary

Proposition 46 addresses concerns regarding patient safety, prescription drug monitoring, and drug testing of physicians. These topics are addressed by amending and/or adding to current laws regarding medical malpractice suits, prescription drug abuse and monitoring, and physician conduct as regulated by the Medical Board of California.

Existing Law

In 1975, Governor Jerry Brown signed MICRA, a bill that capped noneconomic losses (e.g. pain & suffering) in medical negligence suits at $250,000. Since then, the cap has not been raised. Another area the proposed legislation would target is drug testing of doctors. Currently, there is no legal requirement for hospitals to test physicians for drugs and alcohol. Additionally, there is no current legal requirement for medical providers to check the California drug monitoring database before prescribing or dispensing controlled substances.

Proposed Changes to Existing Law

(See the Secretary of State website for full Proposition)

Proposition 46 adds to and/or amends three parts of the state code: the Business and Professions Code, the Civil Code, the Health and Safety Code.

Proposition 46 would increase the 1975 $250,000 cap on noneconomic damages in medical malpractice suits. Noneconomic damages include damages sought for pain and suffering. The cap would increase to $1.1 million dollars and then be adjusted every year to account for inflation. Economic damages do not have a cap and are not affected by Proposition 46.

Another proposed change requires hospitals to administer random drug testing on doctors. Under the current law, there is no random drug-testing requirement on hospitals or providers. In addition to random drug screening, physicians responsible for a patient within a 24 hours time period of that patient having an adverse medical event are required to be screened for drugs and alcohol. Hospitals would be required to report any positive test results to the California State Medical Board. If a provider tests positive for drugs, he or she must immediately be suspended pending investigation.

The third portion of this ballot measure addresses CURES, the California Prescription Drug Monitoring Program database. While membership in CURES is currently low, Proposition 46 would require medical providers to check the database before prescribing controlled substances beginning in 2016. Proposition 46 does not include any increase in funding for CURES.

Fiscal Impact (as estimated by LAO)

The Legislative Analyst’s Office predicts that state and local government costs from Proposition 46 will be tens to hundreds of millions of dollars annually. This would account for less than 0.5% percent of the state’s annual General Fund budget.

The Legislative Analyst’s Office estimates that the adoption of Proposition 47 would result in net state criminal justice savings that could reach the “low hundreds of millions of dollars annually”. Net county criminal justice savings could reach several hundred million dollars annually. These estimates are dependent on a number of factors such as the manner in which these provisions would be implemented in the future (i.e. would offenders be sentenced to county jail or community supervision) and also, the net savings are dependent on the number of crimes committed in the future.

Proponents

The following are found on ballotpedia.org. Visit the website for for information.

Officials:

• U.S. Senator Barbara Boxer (D)

Organizations:

• Consumer Watchdog
• Consumer Federation of California
• Congress of California Seniors
• Consumer Attorneys of California
• California Teamsters Public Affairs Council
• California Conference Board–Amalgamated Transit Union

Individuals:

• Candace Lightner, founder of Mothers Against Drunk Driving
• Erin Brockovich, consumer advocate
• Congress of California Seniors
• Consumer Attorneys of California

Top donors in support of the proposition campaign:

• Consumer Attorneys Issue PAC
• Consumer Watchdog
• Casey, Gerry, Schenk, Francavilla, Blatt & Penfield, LLP
• Bruce G. Fagel, A Law Corporation
• Robinson Calcagnie Robinson Shapiro Davis, Inc.
• CA Nurses Association Initiative PAC

Opponents

(This is a small sample of the long list of opponents. Please see www.ballotpedia.org for the full list.)

Health and Healthcare Organizations:

• California Hospital Association
• California Dental Association
• California Medical Association
• California Dialysis Council
• California Association of Health-System Pharmacists
• Mary Jane Burke, Marin County Superintendent of Schools
• National Association of Social Workers-CA

Other Organizations:

• California Republican Party
• California NAACP
• American Civil Liberties Union of California
• California Teachers Association

Unions:

• California State Building & Construction Trades Council
• Service Employees International Union (SEIU) California
• AFSCME California PEOPLE

Top donors in support of the opponents:

• Cooperative of American Physicians (CAP) ($15,168,704)
• The Doctors Company ($15,111,200)
• Norcal Mutual Insurance Company ($15,000,000)
• California Medical Association (CMA) ($10,162,771)
• Medical Insurance Exchange of California (MIEC) ($10,000,000)
• Kaiser Permanente ($8,000,000)
• California Hospital Association (CHA) ($5,000,000)
• American Dental Association (ADA) ($4,015,000)
• The Dentists Insurance Company ($3,120,000)
• California Association of Hospitals and Health Systems (CAHHS) ($2,500,000)

Arguments of Proponents

Proposition 46’s major supporters argue that proposition 46 will improve on three areas of healthcare. These arguments can be found at www.yeson46.org.

• Proposition 46 will require drug and alcohol tests for medical providers.
• Proposition 46 will curb prescription drug abuse.
• Proposition 46 will bring justice to medical malpractice victims by adjusting the noneconomic damages cap for inflation.

Arguments of Opponents

Major arguments of opponents can be found at noon46.com.

• Proposition 46 is a way for trial lawyers to make more money, but the increased cost of medical lawsuits will be passed to every purchaser of health care.
• Proposition 46 may force doctors and specialists to reduce services or leave California due to increased insurance costs. This would be especially dangerous for underserved communities.
• Proposition 46 jeopardizes patient prescription drug history privacy by increasing provider access.
• Proposition 46 does not allocate funding for updates to CURES, but requires the system take on much more traffic for which it is not equipped.

Conclusion

Proposition 46 will do three things: raise the noneconomic damages cap, require hospitals to drug test medical providers under specified circumstances, and require medical providers to check the CURES before dispensing controlled substances.

Want to learn about the other ballot propositions? Click here to learn more!

Sources:
http://ballotpedia.org/California_Proposition_46,_Medical_Malpractice_Lawsuits_Cap_and_Drug_Testing_of_Doctors_(2014)
http://cavotes.org/vote/election/2014/november/4/ballot-measure/proposition-46/more
http://votersedge.org/california/ballot-measures/2014/november/prop-46/funding#.VCUca2RDsYk
http://www.lacdp.org/endorsements/
http://www.noon46.com/
https://www.yeson46.org/
http://vig.cdn.sos.ca.gov/2014/general/pdf/text-of-proposed-laws1.pdf#prop46