Battle over tort reform, physician drug testing wages in California

Based on a partnership with Urology Times, articles from the American Association of Clinical Urologists (AACU) provide updates on legislative processes and issues affecting urologists. We welcome your comments and suggestions. Contact the AACU government affairs office at 847-517-1050 or info@aacuweb.org for more information.

A battle is brewing in California between trial lawyers and physicians, one that could be a harbinger of things to come nationally.

Last summer, a controversial ballot initiative was introduced in California that would dramatically alter the state’s decades old, landmark Medical Injury Compensation Reform Act of 1975 (MICRA), require mandatory drug testing of physicians, and require physicians to review a statewide medication database prior to prescribing Schedule II or III controlled substances.

Dubbed “The Troy and Alana Patient Safety Act,” the initiative was named after the son and daughter of wealthy California businessman and Internet entrepreneur Bob Pack, a main proponent of the initiative, whose children lost their lives in 2003 when they were struck by a car driven by a woman found to be under the influence of prescription pain medications. The driver had been treated by a number of physicians, and the Packs sought to hold those physicians accountable for improperly prescribing her pain medications. MICRA limited any recovery for non-economic damages resulting from the deaths to $250,000 per child.

Efforts to increase MICRA’s cap on non-economic damages have been unsuccessfully tried for years. This latest initiative, if passed, would require the original $250,000 limit on non-economic damages, per decedent, to be adjusted to reflect any increase in inflation as measured by the Consumer Price Index published by the United States Bureau of Labor Statistics. Permitting such an adjustment would mean that the limits on non-economic damages increase from $250,000 to roughly $1.1 million.

Increasing the damages cap is a sufficiently significant and contentious issue in California. However, this initiative contains other provisions, purportedly crafted to address patient safety, which legislatures and advocates in other states may find appealing and seek to implement. One of these provisions is the requirement that physicians first access and consult a statewide database of prescriptions for controlled substances prior to prescribing a Schedule II or III controlled substance. Failure to adhere to this requirement is cause for disciplinary action by the applicable professional licensing board. Thus, if this initiative becomes law, urologists would not only be required to access and consult this database prior to prescribing narcotic pain medications, but would also be required to consult the database when prescribing testosterone, a Schedule III controlled substance.

Even though the driver who fatally struck the Pack children was not a practicing physician, the Troy and Alan Patient Safety Act, if made law, will impose mandatory drug and alcohol testing on physicians. The initiative requires hospitals to randomly test all physicians who are employees or contractors of the hospital as well those physicians with admitting privileges at the hospital.

In addition, a hospital is to test a physician for drugs or alcohol at the direction of the Medical Board of California when someone has reported information to the board “which appears to show” that the physician “may be” or “has been impaired by drugs or alcohol while on duty,” or that any physician “responsible for the care and treatment of a patient during an adverse event failed to follow the appropriate standard of care.” Moreover, any physician involved in the care and treatment of a patient who experienced an adverse event, as defined by California’s Health and Safety Code, must submit to a drug and alcohol test within 24 hours of the event.

Any physician testing positive or any physician who refuses to comply with the testing provisions of the law would be subject to disciplinary action by the medical board. In addition, this initiative creates a presumption of professional negligence in any lawsuit against a health care provider arising from an act or omission of a physician who tested positive for drugs and alcohol or who refused to comply with the testing mandates. Thus, for example, if a physician was involved in the care and treatment a patient who experiences an adverse event and that physician does not undergo a drug and alcohol test within 24 hours of the event, there will be a legal presumption that the physician was professionally negligent in any subsequent medical malpractice case.

The enactment of this initiative will have a dramatic effect upon the medical community in California and potentially other states. Proponents of The Troy and Alan Patient Safety Act are in the process of gathering the requisite number of signatures (504,760) in order to win a place on the November 2014 ballot. If they are successful, California can expect to see intense and heated campaigns being fought on both sides. More broadly, states may find the non-MICRA aspects of this initiative-those involving drug databases and testing-appealing and take steps to implement them.

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