Worker drug testing has become common practice among U.S. employers. But rarely does it apply to licensed professionals. If California’s Proposition 46 had been approved in the November 2014 elections, its requirement for random drug testing of physicians would have been a first in American history.
The unusual initiative sought to make numerous changes to the medical system in the state by increasing the cap on non-economic damages in negligence lawsuits from $250,000 to over $1 million—and requiring drug and alcohol testing of doctors as well. But after insurance companies funneled millions of dollars into defeating the measure (also titled the Medical Malpractice Lawsuits Cap and Drug Testing of Doctors Initiative) it lost by more than 2 million votes.
One of the most controversial features of the initiative was its yoking of the malpractice cap proposal to the drug-testing requirement. Supporters of the initiative argued that random testing of physicians was the centerpiece for the bill, and the raise in the cap of malpractice lawsuits was an adjustment needed for inflation. They focused on medical negligence as the crisis, and random testing to curtail malpractice as imperative for the safety of patients. Critics, however, argued that the measure was deliberately misleading in presenting drug and alcohol testing of physicians as its centerpiece.
Molly Weedn of the California Medical Association contends that Proposition 46 was a “deeply flawed” measure. “It would have increased health care costs for everyone, decreased access for those who need it most and taken money directly out of the health care delivery system and put it right into the pockets of trial attorneys,” said Weedn, CMA associate vice president of public affairs
She rejects proponents’ claim that the initiative was really about patient safety. “It did everything but [protect patients],” Weedn said. “In fact, provisions around drug testing and mandatory use of a drug monitoring database were included, by the proponents’ admission, because they polled well and were the “ultimate sweetener.’ This measure was always about increasing the cap on malpractice payouts to fatten the pockets of trial attorneys.
She believes Proposition 46 would have had a severe impact on the cost of health care in California. A former legislative analyst estimated that for an average family of four, the cost of health care would increase by $1,000 per year, while the current legislative analyst said the measure could have cost state and local governments up to hundreds of millions of dollars annually. “It also would have resulted in reduced access to care for patients that need it most,” she said, arguing that many specialists would be forced to reduce services or move to states with more affordable malpractice premiums.
Carmen Balber, executive director at Consumer Watchdog, on the other hand, saw Proposition 46 as a patient-safety measure “going after one of the biggest crises in the country.” Balber called random drug testing of physicians “a necessity,” given statistics that show approximately 140,000 deaths occur in American hospitals from medical negligence. A major culprit for these deaths is the fact that doctors are not being drug tested, she said.
“Fifteen to eighteen percent of doctors will have a substance abuse problem at some point in their careers.” Balber stated. “The measure would have allowed identification of impaired doctors and protected patients who are needlessly being harmed.” She asserted that the proposition would not have overburdened taxpayers, and called out opponents of the measure for campaigning tactics filled with “bogus rhetoric.”
Proposition’s 46 proposal to require doctors to check California’s statewide prescription drug database, called CURES, would save California taxpayers up to $406 million annually, Balber said. The requirement, would also “give more information to doctors to prevent prescribing to addicts.”
Organizations like the CMA criticized the CURES database as an invasion of privacy, but Balber pointed out that the database run by the Department of Justice already existed before the initiation of Proposition 46 and that it posed “very little risk” of infringing privacy.
Molly Weedn thinks voters made the right decision and that Proposition 46 should have focused on looking at ways to improve access to safe, quality medical care to ensure people get the treatment they need.
From Carmen Balber’s perspective, on the other hand, something needs to be done to mitigate the correlation between physician malpractice and substance abuse. “Proposition 46 sought to take on this crisis in a better, different way, and keep the patient safe.”