Since the 1970s, California has had some of the most aggressive tort reform laws in the country. The law, known as MICRA, caps non-economic damages – otherwise known as “pain and suffering.” The cap is $250,000 and it’s not budged in over three decades. This feature has kept medical malpractice premiums lower than in other states that exemplify judicial hell-holes.
California allows citizens to change laws directly via ballot propositions (referenda). To get a proposition on the ballot, a critical mass of signatures must be obtained. Then, the citizens vote thumbs up or thumbs down.
Plaintiff’s attorneys have tried multiple times to over-turn MICRA in courts. They’ve not succeeded. Now, the question of MICRA is being brought directly to the citizens. If enough signatures are collected, the fate of MICRA will be determined in November 2014 elections.
The initiative would increase non-economic damages up to 4 fold. Given that the cap has not been adjusted in decades, some rise is probably inevitable. Whatever argument was made in the 70’s about the cap being fair has presumably been diluted based on little more than cost-of-living.
There are other components to the initiative beyond updating caps on pain and suffering. One section addresses mandatory alcohol and drug testing. The summary below describes the details.
Requires Hospitals to Conduct Alcohol and Drug Testing on Physicians. This measure requires hospitals to conduct testing for drugs and alcohol on physicians as follows:
- Random testing on physicians who are hospital employees, contractors, or who have the authority to admit patients to the hospital.
- Following an adverse event, tests on physicians who were responsible for the care and treatment of a patient or prescribed medication to a patient within 24 hours prior to the adverse event. Physicians would be required to make themselves available for drug testing as soon as possible after the adverse event occurs. Failure to submit to drug testing within 12 hours after the physician learns of the adverse event can be cause for suspension of the physician’s license.
- At the direction of the Board, tests on physicians who are the subject of a report of possible drug or alcohol use or failure to follow the appropriate standard of care
The hospital would be required to bill the physician for the cost of the test. The hospital would also be required to report any positive test results, or the willful failure or refusal of a physician to submit to the test, to the Board which must do the following:
- Refer the matter to the Attorney General’s Health Quality Enforcement Section for investigation and enforcement.
- Temporarily suspend the physician’s license pending the Board’s investigation and hearing on the matter.
- Notify the physician and each of the health facilities at which the physician practices that the physician’s license has been temporarily suspended.
If the Board finds that a physician was impaired by drugs or alcohol while on duty or during an adverse event, or that a physician has refused or failed to comply with drug and alcohol testing, the Board must take specified disciplinary action against the physician, which may include suspension of the physician’s license. The measure also specifies that there will be a presumption of professional negligence in any civil action taken against any physician who tested positive for drugs or alcohol or failed to comply with the drug testing requirements of this measure.
Will this make patients safer?
I’m skeptical. But, it makes hospitals and the Board of Medicine appear they are doing something.
I have no idea how many patients are “injured” due to a doctor’s abuse of any substance. Whatever the number is, it’s one too many.
But, how would this be implemented?
I understand why pilots are tested after an incident, such as a plane crash, near-miss, or landing at the wrong airport. These are discrete events with little definitional ambiguity.
What about a patient in the intensive care unit being evaluated and treated by seven specialists, multiple nurses, many technicians, and so forth. What’s an adverse event? Infection? DVT? Decubitus ulcer? Test everyone for drugs and alcohol? Say one healthcare practitioner tests positive for something – maybe the doctor had some dental work done a day earlier and the last vestige of Vicodin is being metabolized by his liver – but, functionally, he was on top of his game. According to the initiative, that doctor would be presumed negligent in any civil action even if he later had an opportunity to rebut in court. Same if he had a glass of wine the evening before. The measure says nothing about threshold blood alcohol levels.
How about you’re having dinner with your spouse and you’ve had a few sips of a glass of wine. You’re not on call. The ER calls and says they need help. The person who is on call is not answering his page. What now?
My guess is that if this measure passes as is, there will be fewer incident reports filed. And, I doubt the cause of safety will be served.
But, don’t be surprised if the program is abused to settle scores against so-called disruptive physicians. Particularly against those doctors who advocate for their patients by complaining time and time again about systemic safety problems at their hospitals.
Here’s another red flag: poppy seeds.
When I was a kid we often had poppy seed pastry as a an after-dinner sweet during religious holidays. If you have ever tasted these, they are indeed a treat.
When I was working, I would NEVER have any alcohol in the afternoon. When I was covering for another doctor on vacation, I would also never drink any alcohol during the time I was scheduled for their potential calls.
As soon as a patient (especially one you are administering an informed consent advisory) smells Etoh on your breath, you might as well close your doors. You will be considered an alcoholic. Period.
I have known some dentists who occasionally had a “drink” during lunch. I think this is a mistake, because patients can easily smell this on their breath.
It has been proven (through various lawsuits) that poppy seeds can result in a positive blood test for opiates. If this new invasive rule ever becomes law, I would certainly cross them off my list. BTW, this also includes bagels, in which their presence might be hidden, especially if this is an “everything included all-terrain” bagel.
Michael M. Rosenblatt, DPM
If this proposition becomes law in California, would not enforcement of the regulation be a violation of the federal 4th Amendment? The Fourth Amendment to the United States Constitution is the part of the Bill of Rights that prohibits unreasonable searches and seizures and requires any warrant to be judicially sanctioned and supported by probable cause.
States that have attempted to make the availability of entitlement aid conditional on illicit substance testing have been successfully challenged using this very same argument.
And what about non-physician providers who may be remotely connected to an adverse patient outcome? Should they be held to the same standard? What about health care insurance representatives who sometimes deny authorizations for necessary medical tests? Politicians who pass legislation or enforce laws that might affect health care individually or collectively?
Hospital employees need to be sober, but mandatory drug testing after an incident report is against my libertarian core.
As a resident, I remember controlling a post-tonsillectomy hemorrhage after hours, and my attending had an aroma of wine on his breath. This didn’t phase me or anyone else, since he was obviously capable of operating. I also remember during residency in the 90s that having one or two drinks during a hospital-related celebration was acceptable even if you were on-call. Based on the status of medicine in America today, I’ll bet hospital-celebrations are few and far between.
If I had to guess, there would be no causal relationship between positive urine and a negative outcome, if the study was performed with a control: the random employee picked to pee in a cup during the study that I hope never happens.
It is for these reasons that the Urinator may become part of the uniform of all hospital employees. See Urinator.com for more information. No disclosures. 🙂
Eric
1. MICRA NEVER kept doctor’s malpractice insurance premiums lower. NEVER. In 1986, eleven years after it was instituted, the NY Times wrote about how astronomically high doctor’s insurance rates still were in California. Two years later, Prop 103 was passed which finally lowered doctor’s insurance rates. In 2012, Insurance Commissioner Dave Jones lowered doctor’s insurance rates some $44 million using Prop 103, NOT MICRA. MICRA’s sole purpose was to keep insurance rates low, but it never did. It is totally not necessary any longer.
2. The ballot initiative currently has enough signatures to qualify, but they are continuing to gather to cover any signatures that might not qualify. In November, Tulchin Research did a survey of 3000 likely California voters. Nearly 3/4 (73%) aid they would vote “yes” on the Troy and Alana Pack Patient Safety Act if the election were held that day.
However, they have not yet been affected by the barrage of commercials from both sides. The medical and insurance industries have already raised close to $33 million dollars and are expected to raise closer to $60-$80 million. The patient safety side has raised just over $1 million. Makes one wonder why the medical and insurance industries are so scared.
3. The initiative contains three major components.
a. Mandatory random drug testing of doctors in hospitals (as you outlined).
b. Mandatory use of the CURES database for Schedule II and III drugs to help prevent “doctor shopping” and “pill mills.”
c. raise the MICRA cap with inflation, with annual adjustments.
4. The medical malpractice scare of 1975 was phony. It was concocted by the Argonaut Insurance Company who had done poorly in the stock market. This too was detailed in an article in the 1975 New York Times.
5. Senator Barry Keene, who wrote the original MICRA law, has come out stating that he agrees the law should be raised to match inflation.
6. The Drug testing invokes an investigation. Poppy seeds would surely be considered as part of that investigation. No one is going to lose their license merely because they tested positive for drugs and alcohol without an investigation.
7. It is not unreasonable to expect our doctors to be fully fit to perform their duties without being under the influence of drugs and alcohol. 15-20% of doctors will have a drug abuse problem in their lifetime.
8. All staff members involved that work in the hospital are subject to the same drug testing.
@Eric M Joseph, what if that doctor HADN’T been capable of operating and had done some harm or killed the patient with his/her negligence?
Eric Andrist’s rather flippant statement about “a positive drug test invoking an investigation” was very troubling. Perhaps if HE were being investigated, he might not be so blithe about it.
An investigation usually results in the necessity for peer review and hiring an attorney to represent you. Peer review investigation (at the present time) is a loaded canon against physicians, with literally no rules to protect them.
Then, what happens when Media get ahold of the “investigation?” OK, you’ve survived the investigation of the poppy seed incident, which is now permanently part of your professional record and cannot be expunged.
Then, after you get sued, plaintiff’s attorney certainly will get ahold of this data and use it against you in any way possible. You can explain it to the jury. Maybe they will laugh about it as a “misunderstanding.” Maybe not.
I would suggest that Eric Andrist knows nothing about the threat peer review poses to physicians. Perhaps if he had invested 12 years of his life training for the privilege of being a physician, he might think differently.
An investigation against a physician is an unmitigated disaster. Suicides occur over these procedural nightmares, which come right out of Kafka.
Michael M. Rosenblatt, DPM