The Affordable Care Act Is Under Attack in California with Prop 46

California will be faced with yet another deceptive “proposition” at the ballot box this November 4th. This one is Prop 46, and on its surface, it sounds great. Its hook is: Want to be able to sue a bad doctor for uber bucks and force them to be drug tested?

Here is what Prop 46 is all about:

Increase the state’s cap on damages that can be assessed in medical negligence lawsuits to over $1 million from the current cap of $250,000.

Require drug and alcohol testing of doctors and reporting of positive tests to the California Medical Board.

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Require the California Medical Board to suspend doctors pending investigation of positive tests and take disciplinary action if the doctor was found impaired while on duty.

Require health care practitioners to report any doctor suspected of drug or alcohol impairment or medical negligence.

Require health care practitioners to consult state prescription drug history database before prescribing certain controlled substances.

Here’s the thing. Under the hood, Prop 46 has some major unintended consequences. Yes, California needs to adjust the current cap on pain and suffering as currently it’s at $250,000 cap. The opponents of Prop 46 have offered to raise that to $1 million to reflect value of money today (the current 250k cap was passed in 1976). But trial lawyers want unlimited damages.

Hey, this sounds great if you are identifying as the possible victim of a bad doctor or botched surgery. Why not?

But like all policy, the why not is often found in the unintended consequences. The biggest unintended consequence is that if passed, Prop 46 would send medical malpractice insurance premiums skyrocketing, with the consequence being that good doctors would flee the state — particularly in less wealthy areas.

Newspapers across the state have taken issue with California Sec. of State Kamela Harris’ title and summary of the ballot initiative.

The San Francisco Chronicle called out Sec. Harris (D), “Its proponents have openly admitted that the provision for random alcohol and drug testing of doctors was added as a political sweetener. Voters should not be fooled by the title and summary put together by Attorney General Kamala Harris’ office that focuses on the testing as if it were the centerpiece of the measure. It is not.”

Dr. Elly LaRoque explained the concerns of those who oppose the measure to PoliticusUSA, “I feel the proposition is misleading and will have damaging repercussions for patients in terms of raising healthcare premium costs, physician access, risks of confidentiality breaches, and difficulty obtaining prescription medication.”

Trial lawyers have been trying to sell Prop 46 with the hook of drug testing for doctors, but the measure is really about quadrupling the current cap on pain and suffering. If this measure passes the trial lawyers will win, while doctors and patients lose.

California doctors who have already accepted fee cuts under the ACA could stop accepting Medicare, Medicaid and private insurance ACA plans if medical malpractice insurance rates triple due to Prop 46.

While it is almost universally agreed that the cap on pain and suffering damages should be examined, raising the cap fourfold overnight is not the best way to handle the issue. At a time when California is experiencing a shortage of primary care physicians, the passage of Prop 46 would only serve to make the crisis worse.

In the currently polarized political environment, Prop 46 has done the impossible. Democrats and Republicans, liberals and conservatives have all joined forces in opposition to the measure.

Behind its patient safety disguise is a boatload of unintended consequences for the ACA. Californians waited decades for affordable health care reform, and they shouldn’t let a cash grab by trial lawyers undo the progress that has been made.

Don’t be fooled by the promise to drug test doctors. A No vote is the only way to go on Prop 46.

Sarah Jones

Listen to Sarah on the PoliticusUSA Pod on The Daily newsletter podcast here.

Sarah has been credentialed to cover President Barack Obama, then VP Joe Biden, 2016 Democratic presidential candidate Hillary Clinton, and exclusively interviewed Speaker Nancy Pelosi multiple times and exclusively covered her first home appearance after the first impeachment of then President Donald Trump.

Sarah is two-time Telly award winning video producer and a member of the Society of Professional Journalists.

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