PROPOSITION 46: Have You Joined the Fight?

Peter Bretan, MD

Over the last several months, you may have read information about the Medical Injury Compensation Reform Act (MICRA) lawsuit initiative, Proposition 46, in the pages of this magazine, on the SCMA website, in information from CMA, and likely from the hundreds of coalition partners that have pledged to oppose Prop. 46 this November.

On Nov. 4, voters will be asked to cast their votes on Prop. 46. In the final months, weeks and days leading up to Election Day, it will be our task as physicians to educate our patients, neighbors, friends and families about the real intentions behind Prop. 46.

Overview of Prop. 46
Prop. 46 is complex and contains three separate and distinct pieces that trial lawyers have thrown together in an effort to mask their real intent: quadrupling non-economic damages in MICRA, pulling money directly out of the health care delivery system and putting that money into their own pockets.

Here are the three pieces of Prop. 46:
A quadrupling of the non-economic damages limit on medical malpractice awards in California. Raising the limit will cost consumers and taxpayers hundreds of millions of dollars every year in higher health care costs, and cause many doctors and other medical care professionals to quit their practices or move to places with lower medical malpractice insurance premiums—reducing access to care in California.

An unfunded mandate that will require physicians, pharmacists and veterinarians to check a government-run database before prescribing Schedule II or III drugs. This mandate threatens patient privacy by requiring a massive expansion of access to a personal prescription drug database.

A mandatory requirement to perform random alcohol and drug testing on doctors. This piece was only added to Prop. 46 to distract from the main purpose: increasing the limit on the amount of medical malpractice lawsuit awards.

Raising Health Care Costs
Prop. 46 was carelessly thrown together without concern for taxpayers’ pocketbooks, health care or privacy. One question that comes up repeatedly is, “How will Prop. 46 increase health costs?”

We know that Prop. 46 will result in higher health care costs for everyone. We’ll see money come directly out of the health care delivery system and straight into the pockets of the lawyers who stand to gain the most. These higher costs will be passed on to every purchaser and provider of health care: state and local governments, employers, employees, consumers and taxpayers. That’s why such a broad coalition of groups stands in solid opposition to Prop. 46.

According to California’s independent, nonpartisan Legislative Analyst’s Office (LAO), Prop. 46 could increase costs for state and local governments by “several hundred million dollars annually.” The LAO goes on to warn that “even a small percentage change in health care costs could have a significant effect on government health care spending.”

Here’s why state and local governments will be hit with higher costs if Prop. 46 passes:

• They provide health care benefits for current and retired government employees.

• They also provide health care services for low-income residents through Medi-Cal and other locally-run health care programs like community clinics and public hospitals.

Higher health care costs for state and local governments would reduce funding available for vital local services like police, fire, social services, parks and libraries. If Prop. 46 passes, everyone will carry the burden of these increased costs.

While the LAO estimates costs to state and local governments, those agencies aren’t the only ones who will pay for more lawsuits and higher payouts. According to a study by California’s former legislative analyst, Prop. 46 will increase health care costs across all sectors by $9.9 billion annually, which translates to around $1,000/year in higher health costs for a family of four.

For many families across the state, that increase presents a tough choice between groceries and health care—a scenario that we can’t afford to let happen.

Threatening Privacy
Prop. 46 includes a provision that could significantly jeopardize patient privacy. The initiative forces doctors and pharmacists to use a massive statewide database, CURES, which is filled with patients’ personal prescription drug information. Though the CURES database already exists, it is underfunded, understaffed and technologically incapable of handling the massively increased demands Prop. 46 would place on it. In fact, the LAO noted, “Currently CURES does not have sufficient capacity to handle the higher level of use that is expected to occur when providers are required to register beginning in 2016.”

Many physicians want the CURES database to work to help keep patients safe. Unfortunately, the provision in Prop. 46 isn’t that simple.

Prop. 46 will force the CURES database to respond to tens of millions of inquiries each year—something the database simply cannot do in its current form or functionality. A nonfunctioning database system will put physicians and pharmacists in the untenable position of having to break the law to treat their patients, or break their oath by refusing needed medications.

Another concerning piece of the CURES provision is that the massive ramp-up of the database will put patients’ private medical information significantly at risk. Prop. 46 doesn’t contain any provisions or funding to upgrade the database with increased security standards to protect personal information from government intrusion, hacking, theft or improper access by non-medical professionals.

The CURES database contains a record of every dispensed prescription of a Schedule II, III or IV substance and contains highly sensitive, personal and potentially stigmatizing details about a person’s health. It includes prescription information about medicines used to treat anxiety, insomnia, obesity, narcolepsy, drug detoxification, pain, epilepsy, conditions related to cancer and AIDS, asthma, chronic infection, and other sensitive medical conditions.

What’s more, Prop. 46 gives the Department of Justice unfettered discretion to disclose confidential patient prescription information to any state, local, or federal public agencies for disciplinary, civil or criminal purposes. There are literally hundreds of entities and thousands of agency employees who will gain access to highly personal and sensitive patient health information for non-medical reasons.

Get Engaged!
We’ve got a lot of work to do between now and Election Day. The proponents of Prop. 46 continue to mislead the public about the real intentions behind the measure: quadrupling the cap on non-economic damages in MICRA, which will result in higher health care costs for everyone.

For the future of medicine in California and the nation, and for the safety of our patients, I ask you to get engaged in these last weeks and months. You can:

Donate to the “No on 46” campaign. It’s as simple as visiting NoOn46.com and clicking on “contribute.” Every dollar helps us produce material to ensure voters understand the risks associated with Prop. 46

Order “No on 46” campaign material. We’ve got buttons, office posters, informational brochures, lab coat cards and more, all available at NoOn46.com. Simply click “Take Action” and “Get Campaign Material” and it will be sent directly to you—or use the order form on page 24.

Sign up to be a part of the “No on 46” campaign at NoOn46.com.

Talk to your patients about Prop. 46. As physicians, we see dozens of patients daily. Take the time to let them know about the dangers and real intent behind Prop. 46.

The future of our profession depends on us, and I urge you to commit to being involved through Nov. 4 and beyond.

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Dr. Bretan, a Sebastopol urologist, serves on the CMA board of directors.
Email: bretanp@msn.com

Even as the fight against Proposition 46 goes into overdrive, CMA staff and physicians continue to work on a plethora of other issues, from strengthening public health to protecting the physician-patient relationship.

Doctors can get involved in these efforts by using the many resources on www.cmanet.org, some of which are described below.

The Latest News
The home page at cmanet.org features daily updates on CMA’s political, legislative and legal activities, from the “No on Prop 46” campaign to CMA’s state and federal lobbying and its many court actions.

Issues Database
Summaries of the hundreds of legal and legislative issues CMA is working on or has already resolved, including court cases and pending legislation.

Publications
In addition to its daily website updates, CMA offers several publications that members can subscribe to for free:

CMA Alert. Biweekly newsletter that keeps physicians up to date on critical issues affecting the practice of medicine in California.
CMA Capitol Insight. Biweekly column by veteran journalist Anthony York, reporting on the inner workings of the Legislature.
CMA Practice Resources. Monthly bulletin that focuses on health care industry changes and how they impact physician practices.
Legal Case List. Summary and current status of litigation in which CMA is a party or has filed an amicus curae brief.
Legislative Hot List. Summary and current status of CMA-sponsored bills and other significant legislation.
OMSS Advocate. Newsletter for organized medical staffs with updates on current events and issues.

To access these and many other CMA resources, visit www.cmanet.org.