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.