Prop. 46, Inspired By Tragedy, Pits Doctors Against Lawyers

After Troy and Alana Pack were killed by an impaired driver, their father became an advocate for change, ultimately writing Prop. 46 on November's ballot. (Photo Courtesy: Bob Pack)
After Troy and Alana Pack were killed by an impaired driver, their father became an advocate for change, ultimately writing Prop. 46 on November's ballot. (Photo Courtesyof Bob Pack)

Troy and Alana Pack had spent the day at their neighborhood Halloween party in Danville. 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 down Camino Tassajara. Destination: Baskin Robbins 31 Flavors.

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

Bob Pack stayed home to rest. 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,” he says.

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

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Troy and Alana were pronounced dead at the hospital. In the months after their death, Pack’s wife, Carmen, retreated into 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 last decade, he has helped write seven bills in California's Legislature and has evolved into a savvy political player. None of his efforts have been bigger than the one he's working on for the November election: Proposition 46, the patient safety initiative. It's complex and has three distinct proposals.

Requires Doctors to Check Prescription Database

The first one, aimed at addressing “doctor shopping,” became a pet issue of Pack’s after the accident. Investigators found the driver who killed his kids 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,” he says. “They, in my view, recklessly wrote prescriptions for her, for thousands of pills.”

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 CURES database, or the Controlled Substance Utilization Review and Evaluation System.

Prop. 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 reduction in the number of narcotics prescriptions written. Studies have verified the correlation, but acknowledge that some of the reduction may be due to drug abusers turning to alternative sources or street drugs, like heroin.

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 (CMA), adding technical glitches have made the database unreliable.

Lifts Cap on Malpractice Awards

Doctors are also unhappy about another big piece of Prop 46: the 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 that 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 lawyers said it simply wasn’t cost effective for them to take his case.

“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 non-economic damages, or pain and suffering awards. Economic damages –- money that accounts for medical expenses, or lost wages when a person can no longer work because of a medical mistake –- are not capped.

But economic damages were no help in a case like Pack’s. His children had no jobs and therefore no lost wages. And they were dead, so they had no ongoing medical bills.

A study from Emory University shows that medical malpractice caps limit access to legal representation for up to 95 percent of victims. Children, the elderly and other people with no or very low incomes who cannot claim economic damages are the most affected.

“So the victim gets victimized a second time, not only by the harm or the loss of a loved one, but then they get no accountability or justice through the legal system,” Pack says.

That’s why some states have ruled such caps on pain and suffering awards unconstitutional.

Pack thinks California’s non-economic malpractice award should at least be adjusted for inflation, so lawyers would be more willing to take legitimate cases. Prop. 46 would raise the cap from $250,000 to $1.1 million and provide an annual adjustment for inflation going forward.

But the CMA's Richard 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. “And you’ll see doctors in the middle of their career start to look at it and say, 'Maybe I can find a practice someplace else in another state where it will be more financially viable and I wouldn’t have to worry about the same number of malpractice cases as I’m going to have to face in California.' ”

About a dozen other states have caps on pain and suffering awards similar to California’s.

In a review of studies from the 1970s to the early 2000s, researchers writing for the Milbank Quarterly found that damage caps do reduce malpractice insurance premiums, but to what degree is a matter of debate, with study results ranging from 6 to 25 percent.

No evidence was found that this savings gets passed on to consumers in the form of lower health insurance premiums, partly because malpractice insurance constitutes such a small percentage –- less than 2 –- of overall health care costs.

The same review highlighted a study from the U.S. Department of Health and Human Services that found a link between doctor supply and non-economic damage caps. Specifically, rural counties in states where caps were set at $250,000 –- like California -– had 5.5 percent more surgeons and 5.4 percent more obstetricians/gynecologists, compared with states with a higher cap.

Studies were inconclusive on whether doctors practice more “defensive medicine” in states with caps -– ordering more tests and procedures to avoid making mistakes and being sued.

County governments are especially concerned about the potential costs associated with Prop. 46.

Twelve counties, including Los Angeles and San Francisco, operate their own hospital systems and would have to use taxpayer dollars to cover the costs of additional malpractice lawsuits. The state’s independent legislative analyst estimates that cost could be between tens of millions and hundreds of millions of dollars a year.

The LAO reports says some of that could be offset by savings from other parts of the measure, the prescription database and the most controversial piece of Prop. 46: doctor drug testing.

Mandates Drug & Alcohol Testing for Doctors

This 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.

“All…of…the….pilots do it. Astronauts do it. Even the school bus drivers do it,” the ad goes. “Let’s do it. Let’s pee in a cup.”

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 Prop. 46 passes, California would be the first state in the country to require drug testing of doctors.

“We’re the only profession I know of that are charged to police ourselves,” says Stephen Loyd, a Tennessee physician who thinks California should lead the way in passing Prop. 46. For years, he says he practiced medicine while grappling with an addiction to painkillers. At his worst, he was taking 100 Vicodin pills a day.

“Here’s the scariest thing about it. I thought I was a better doctor. I thought I was sharper. Thought I didn’t need to sleep, thought I didn’t need to eat, I could go longer, I could see more patients,” he says. “But I wasn’t better, I was worse.”

Loyd’s father ultimately caught him using and forced him to go to rehab.

Prop. 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 CMA's Thorp. He says hospitals already have systems in place to suspend doctors who show up to work intoxicated.

“There’s very little tolerance for anyone to come in either acting or smelling or having any kind of sign of being under the influence,” he says.

But do doctors really snitch on each other? Loyd says no one ever reported him for being high.

“My colleagues all knew something was wrong. But nobody said anything,” he says. “They didn’t want to hurt my livelihood. They didn’t want to damage my reputation; they didn’t want to damage my practice.”

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

Prop. 46 backers cite estimates that, at any point in time, 1 to 2 percent of doctors are abusing drugs or alcohol. But they admit there are no firm data.

Regardless, Prop. 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.

Pack admits that drug testing was never part of his original plan for Prop 46. Increasing awards for victims of medical malpractice was his main goal. He says it was medical experts from the East Coast who caught wind of Prop. 46 and pushed the committee to add doctor drug testing.

“At first I had a mixed feeling, partially because my father-in-law is a doctor,” he says.

But he says the more research he did, the more he felt like drug testing was a core piece of patient safety.

Studies of workplace drug testing programs are actually inconclusive on whether testing deters employee drug use or reduces workplace accidents. A review of 23 studies in the upcoming issue of Accident Analysis and Prevention concluded: “The evidence base for the effectiveness of testing in improving workplace safety is at best tenuous.”

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 non-economic damages so that the payouts to trial attorneys can increase.”

But doctors and insurance companies are the big spenders in this campaign, amassing $57 million and 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.

“Proposition 46. What’s the real story? Well, start with the trial lawyers,” goes one opponent radio ad. “They wrote and paid for Prop. 46. And just as you might have guessed, they did it for money.”

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These ads are everywhere. And it appears the blitz might be working. Early polls showed strong support for the measure during the summer – 58 percent. But that support is waning rapidly, dropping to 34 percent support in mid-September. Twenty-nine percent of voters said they hadn’t yet decided.