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California Ballot Measure Pits Doctors Against Lawyers

Alana and Troy Pack died in 2003 when a woman abusing pain pills hit the children with her car. The accident has led to a ballot measure that, among other things, would put new constraints on physicians.
Courtesy of the Pack family
Alana and Troy Pack died in 2003 when a woman abusing pain pills hit the children with her car. The accident has led to a ballot measure that, among other things, would put new constraints on physicians.

Troy and Alana Pack had spent the day at their neighborhood Halloween party in Danville, a suburb of San Francisco. Ten-year-old Troy went as a baseball player, and 7-year-old Alana was a good witch. In the afternoon, they changed out of their costumes and set out for a walk with their mother. Destination: Baskin-Robbins.

"Alana, she liked anything with chocolate," says their father, Bob Pack. "Troy, for sure, bubble gum ice cream, because he liked counting the bubble gums that he would get."

Bob Pack stayed home. His family made it only half a mile down the road before his phone rang: "I received a call from a neighbor screaming there'd been an accident. And I raced down there."

An impaired driver had veered off the road and hit Troy and Alana head-on. Pack was doing CPR on Troy when the paramedics arrived.

"I remember telling them I love them, and hang on. Just praying that they could hang on," he says

Troy and Alana were pronounced dead at the hospital. In the months after their death, Pack's wife, Carmen, found solace in her Catholic faith. Bob Pack was angry.

"I think, for me to get through, I needed action," he says, "and I needed to take action for justice for Troy and Alana, and also for doing something that I thought maybe I could change to benefit others in the future."

That was nearly 11 years ago. Pack quit his tech job to become an advocate. Over the past decade, he has helped write seven bills in California's Legislature. None of his efforts have been bigger than the one he's working on for the November election: Proposition 46, a patient safety initiative. It's complex and has three distinct proposals.

Requires Doctors To Check Prescription Database

The first proposal aims to curb so-called doctor shopping. Investigators in the Pack case found the driver who killed his children was abusing prescription narcotics.

"She had gone to numerous doctors, saying that she was under different pain — neck pain, back pain, leg pain, elbow pain," Pack says. "They, in my view, recklessly wrote prescriptions for her, for thousands of pills."

Bob and Carmen Pack testify at a hearing in 2006 in Sacramento to authorize the building of a database that tracks the number of times a patient is prescribed potent narcotics.
/ Courtesy of the Pack family
Courtesy of the Pack family
Bob and Carmen Pack testify at a hearing in 2006 in Sacramento to authorize the building of a database that tracks the number of times a patient is prescribed potent narcotics.

Pack set out to help the state build a database where doctors can see how many times a patient has been prescribed serious narcotics, like Vicodin or Oxycontin. The result is the Controlled Substance Utilization Review and Evaluation System, or CURES database.

Proposition 46 would make it mandatory for doctors to consult the database. California would become one of nine states requiring doctors to check before prescribing painkillers to first-time patients.

After passing similar laws, both Tennessee and New York saw a significant drop in the number of narcotics prescriptions written. Studies have verified the correlation, but they acknowledge that drug abusers may be turning to street drugs such as heroin instead.

Many doctors in California like the database. Some have called it indispensable. But they don't like being told how to practice medicine.

"The problem with the current way the ballot measure is written is it makes it mandatory to have that database checked," says Dr. Richard Thorp, president of the California Medical Association. He says technical glitches have made the database unreliable.

Lifts Cap On Malpractice Awards

Many doctors are also unhappy about another big piece of the measure: a proposed change to the cap on "pain and suffering" awards in medical malpractice lawsuits.

After his kids died, Bob Pack wanted to sue the doctors who prescribed drugs to the driver. "I set out and talked to about eight lawyers," he says.

They all turned him down. They told him a 1975 state law limited the malpractice award he could get to $250,000. That meant puny attorneys' fees. The case wouldn't be worth the lawyer's time.

"My reaction was 'What?!' That's not democratic. That's not America," Pack says. "We all have the right to the court system."

The law that set the cap is called MICRA, the Medical Injury Compensation Reform Act of 1975, passed with the intention of keeping medical liability insurance costs low. Several other states followed suit. California's law caps only noneconomic damages, or pain and suffering awards. Economic damages — for medical expenses or lost wages — aren't capped.

But economic damages were no help for Pack. Children have no jobs, no lost wages. And his children had no ongoing medical bills.

"So the victim gets victimized a second time," Pack says. "[He gets] no accountability or justice through the legal system."

Some states have ruled such caps on pain and suffering awards unconstitutional.

Pack thinks California's noneconomic malpractice award should at least be adjusted for inflation. Proposition 46 would raise the cap from $250,000 to $1.1 million and provide an annual adjustment for inflation in the future.

But the CMA's Thorp sees a big problem: "That will encourage additional lawsuits in the system." He argues more lawsuits will cause malpractice insurance premiums to go up, and those costs could drive doctors out of California.

"You'll start to see it become more difficult to recruit doctors to California," he says.

Mandates Drug And Alcohol Testing For Doctors

The third proposal in the proposition has been the centerpiece of the "Yes on Prop. 46" campaign, inspiring campy ads of airline pilots and police officers dancing through the stalls of a public restroom.

Adding doctors to that list seemed like an easy sell. Early polls indicated voters strongly favored the idea — many thought it was already law. In fact, if Proposition 46 passes, California would be the first state in the country to require drug testing of doctors.

Proposition 46 would give the Medical Board of California a year to set up a system to test doctors for drug and alcohol use, both randomly and within 12 hours after an unexpected patient death or serious injury at the hospital.

Doctors groups say that goes too far.

"This approach is too heavy-handed and too inappropriate," says Thorp. He says hospitals already have systems in place to suspend doctors who show up to work intoxicated.

The two campaigns have fought back and forth over just how much of a problem there is with impaired doctors.

Regardless, Proposition 46 author Pack says, not enough is being done.

"The medical board has no authority and no mandate to be able to find out who these guys are, and weed them out or get them help," he says.

But the focus groups revealing voter support for the idea of doctor drug testing were convincing. That has opponents calling the provision nothing more than a political gimmick.

"The only reason that was added to the proposition is because it polled well with voters," says Thorp. "They're just hiding the fact that they're trying to increase the cap on noneconomic damages so that the payouts to trial attorneys can increase."

Doctors and insurance companies have amassed $57 million to fight Proposition 46, making this the most expensive campaign of the fall election. They're outspending lawyers 10 to 1 on ads aimed at swaying voters toward a "no" vote. None of them even mentions doctor drug testing.

Early polls showed strong support for the measure — 58 percent. But that support had dropped to 34 percent support in mid-September. Twenty-nine percent of voters said they hadn't yet decided.

This story is part of a reporting partnership between NPR, KQED and Kaiser Health News.

Copyright 2020 KQED. To see more, visit KQED.

April Dembosky is the health reporter for The California Report and KQED News. She covers health policy and public health, and has reported extensively on the economics of health care, the roll-out of the Affordable Care Act in California, mental health and end-of-life issues. Her work is regularly rebroadcast on NPR and has been recognized with awards from the Society for Professional Journalists (for sports reporting), and the Association of Health Care Journalists (for a story about pediatric hospice). Her hour-long radio documentary about home funeralswon the Best New Artist award from the Third Coast International Audio Festival in 2009. April occasionally moonlights on the arts beat, covering music and dance. Her story about the first symphony orchestra at Burning Man won the award for Best Use of Sound from the Public Radio News Directors Inc. Before joining KQED in 2013, April covered technology and Silicon Valley for The Financial Times, and freelanced for Marketplace and The New York Times. She is a graduate of the University of California at Berkeley Graduate School of Journalism and Smith College.