Proposition 46 addresses important issues in healthcare, but it does so in a hasty and haphazard fashion. The three provisions of Proposition 46 are to require drug testing for physicians, require physicians to check an online database prior to prescribing narcotics, and to increase the cap on “pain and suffering” damages in malpractice. At first, these provisions seem reasonable, which is precisely how trial lawyers and their supporters designed Proposition 46 to appear. Supporters of Proposition 46 advertise increased medical safety, but they do not include the high costs to medical facilities and, subsequently, consumers.
The mandatory drug testing provision of Proposition 46 is possibly the most reasonable. As the proposed law states, people in other safety-sensitive occupations are required to undergo mandatory testing. The specifics are, however, extremely vague. Would a physician doing routine check-ups and non-invasive procedures require the same mandatory testing as would a surgeon operating on the heart or brain? It is also unclear when and how often physicians would be required to undergo drug testing. Ideally, if physicians did test positive, they would have the option to seek professional help prior to losing their medical licenses. This provision does have the potential to improve the quality of healthcare and the health of physicians through decreasing drug and alcohol abuse.
The provision that requires physicians to check a prescription history prior to prescribing narcotics is certainly logical and beneficial to patient health. It would also reduce the amount of illegal prescription drugs being sold and abused. Unfortunately, the database that Proposition 46 plans to use, CURES, requires a lengthy registration process. Should Proposition 46 pass, this provision would go into effect immediately, meaning that any physicians not already registered to CURES would be penalized. More importantly, a single database would then hold huge amounts of confidential patient information. If it is not secured extremely carefully, it leaves the prescription histories of almost every California resident vulnerable. With the rushed implementation of Proposition 46, it seems unlikely that security will immediately be up to par. Requiring physicians to check and update CURES would be very beneficial, but it must be implemented slowly and carefully to avoid the possible pitfalls.
Last but certainly not least, increasing the cap on “pain and suffering” damages is the part that supporters of Proposition 46 actually care about. Economic damages in a malpractice suit are already paid in full, and the pain and suffering aspect is simply an additional settlement. Although the attorney’s fees maintain their current cap, this provision would essentially make every small malpractice suit worth pursuing for trial lawyers. Currently, many cases would not create enough profit for lawyers to deem the case worthwhile. If the $250,000 cap were increased to $1.1 million as is proposed, then lawyers would receive much larger sums as well, even if they are still limited to their current fee cap. While it is true that the “pain and suffering” cap has not been adjusted for inflation, it is dangerous to suddenly quadruple it. Malpractice insurance would likely double as a result, and either this cost would significantly increase consumers’ medical bills, or physicians may simply find it more worthwhile to seek employment in a different state. Just as with the CURES provision, a slow but steady implementation of this provision might be reasonable, but a sudden flip of the switch is certainly not.
Physicians should be held to a high standard, but they do make mistakes. As it turns out, the human body is fairly complicated and seeing an increasingly high volume of patients every day is tiring. Mistakes will happen, and some will be far more significant than others. Drug testing and updating CURES would help reduce these mistakes, but quadrupling the pain and suffering cap makes practicing medicine more akin to walking on eggshells than actually helping people. Physicians should not be punished disproportionately for small mistakes, and lawyers should seek easy money elsewhere.