Prop 46: Drug Tests for Physicians and Judgments that Glisten

Should doctors be exempt from the growing list of professionals who are required to undergo random drug testing? As far as the supporters of an upcoming California ballot initiative are concerned, the answer is simple: no. Proposition 46, which will decide the question in California, is scheduled to hit the state’s ballots this November. If it is successful, California will be the first state to mandate that doctors submit to random drug testing.

The Proposition

Proposition 46 is about more than protecting patients from impaired doctors and its opponents say that it is primarily about something else. According to the California Secretary of State (SOS) summary of the initiative, Proposition 46 would require drug and alcohol testing of doctors and reporting of positive tests to the California Medical Board, alongside other measures to report and prevent physician substance abuse and negligence. The initiative would also require health practitioners to consult state prescription drug history databases before prescribing certain controlled substances. Finally, the initiative would increase the cap on pain and suffering damages from $250,000 to $1.1 million to reflect inflationary changes since the cap was set in 1975. It is the damage cap and the subsequent prospect of bigger tort claim judgments that is making most of the stir in what is becoming a protracted fight. Opponents say the initiative is really about the damage cap and everything else is clever smoke and mirrors.

The Motive

Opponents of Proposition 46, in the argument against the initiative found on the California SOS’s website, criticize the initiative as having been developed by political consultants and paid for by trial lawyers who only stand to benefit financially from its passage. According to a New York Times story, the drug-testing provision was devised through focus groups as a way to make the damage cap more palatable to voters. The thinking was that a popular idea, like physician drug testing, might outweigh opposition warnings that bigger malpractice caps could push up insurance rates and health care costs. In other words, according to opponents, the drug testing is just a sweetener to make the damage cap easier for voters to swallow. Some projections suggest that the bigger damage caps will increase state and local government health care costs somewhere between tens of millions of dollars and several hundreds of millions of dollars annually. Proponents of the initiative, in an argument in favor of the proposition, say it will reduce medical negligence, create much needed accountability for the prevalent and growing problem of physician substance abuse, and establish much needed barriers to doctor shopping for controlled substances.

The Fight

Both sides of the battle have begun to amass funds and tactics in support of their position. With opposing websites called YesOn46.org and NoOn46.org, the sides are spreading information and growing awareness in the fight that is suspected to be more hotly contested than the election for California’s governor. Supporters of the proposition say that opponents of the initiative have already raised $46 million to oppose its passage. The trial lawyers, malpractice victims, patient safety advocates, and consumer groups who support the initiative have not garnered as much financial backing, according to the SOS campaign finance reports. However, trial lawyers have taken to social media to drum up support. Through a series of satirical YouTube videos, the proposition supporters hope they can influence voters despite being matched up against a financially more powerful opponent.

November

If the proposition does pass, both supporters and opponents of the initiative think it is likely to draw national attention and spur change on a national level. Should doctors be above suspicion? Is the question of physician drug testing too tied up in a malpractice issue for it to be fairly decided by proposition 46? Is the drug testing really just a clever sweetener dreamt up by political consultants? Once it’s on the ballot, do the real motivations matter? We will know when November comes.