Opinion: Endorsement video: Why you should vote no on Prop. 46

Proposition 46 is the pupu platter of ballot measures, proposing major changes in three laws related to patient safety. One provision would more than quadruple the cap on “pain and suffering” awards in medical malpractice cases, raising it from $250,000 to $1.1 million. A second would make it harder to obtain addictive or abuse-prone medications such as Oxycontin. Before doctors or pharmacists could provide such drugs to a patient for the first time, they would have to check a state database to see what prescriptions the patient had previously filled. And a third provision would require hospitals to test doctors who worked or had admitting privileges there for drug and alcohol abuse.

The heart of the measure is the proposed increase in damage caps. Inflation has reduced the buying power of the $250,000 cap by almost 80% since it was imposed 39 years ago in an attempt to rein in runaway malpractice insurance premiums. The main effect has been to make it progressively harder for victims of malpractice to find a lawyer willing to take their case -- especially victims who can’t claim much in the way of lost wages, such as children and non-working spouses.

The problem with such a large and abrupt increase is that it would require healthcare providers to carry significantly more insurance coverage -- at significantly higher cost. This is especially threatening to clinics that serve the uninsured, which provide insurance coverage for the doctors who volunteer there, and to rural areas already having a hard time attracting specialists. Meanwhile, providers would likely pass on their higher insurance costs to the folks who pay their bills. As a consequence, state and local governments, which provide healthcare for public workers and the indigent, would face millions of dollars in additional expenses, according to the state legislative analyst’s office.

That doesn’t mean the cap should never be raised, it just means the state should do so more gradually than Proposition 46 would.

The measure’s other provisions have problems too. For example, it would expose doctors to disciplinary action and lawsuits if they didn’t consult the Controlled Substance Utilization Review and Evaluation System before prescribing certain drugs. But state officials say they’re nowhere close to being able to handle the demand for access to the CURES database that the measure would generate. It’s taking the state about four weeks to process applications for access to CURES, a backlog that would only grow if all prescribers were suddenly required to use the database. So for the first several months, doctors without access to the database would have to choose between obeying the law and prescribing the drugs their patients need.

The drug testing regimen, meanwhile, is intrusive and poorly targeted. All doctors associated with a hospital would be subject to random tests, regardless of whether they performed risky surgeries. And while all the doctors who treated a patient just prior to or during an “adverse event” would be subject to mandatory testing, none of the other healthcare professionals involved in the case would come under scrutiny.

The aims of the measure may be noble, but these shortcomings are why The Times urged readers to cast a “no” vote on Proposition 46.

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