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Proposition 46: Doctors Shouldn't Get a Free Pass

Update: Sadly, Proposition 46 did not pass, but Consumer Watchdog and many others interested in protecting victims declare that the issue is not dead and will return. Stay tuned...

What was added almost as an afterthought may be one of the most relevant, albeit controversial, provisions of Proposition 46, which Californians will vote on November 4.

The hotly debated ballot measure has received much publicity for its provision to raise the cap on pain and suffering damages in medical malpractice cases from $250,000, a figure set in 1975 with The Medical Injury Compensation Reform Act (MICRA), to $1.1 million. After 40 years, it's time for a raise.

Prop 46 author Bob Pack also included provisions regarding the mandatory use of the Controlled Substance Utilization Review and Evaluation System (CURES), a prescription drug database that only about eight percent of doctors currently use. The system allows doctors to check a patient's prescription history in hopes of curbing potential "doctor-shoppers."

To make the ballot measure more appealing to voters, Pack also added a mandatory drug testing provision. Turns out, that addition is likely the most important element to Prop 46.

The measure requires drug and alcohol testing for doctors. Any positive tests are reported to the California Medical Board. The Board would then suspend that doctor pending investigation and take disciplinary action if the investigation indicated that the doctor was impaired while on duty.

Civil rights advocates make a valid argument that random drug testing invades the medical professional's privacy rights. But if bus drivers, truck drivers and firefighters have to be tested, why not doctors and surgeons? A significant percent of the general population is predisposed to addiction. An estimated ten percent of business executives struggle with addiction. Doctors are not excluded from those figures. Drug testing could shed the light on dangerous behavior that previously remained hidden from patients and ignored by colleagues. (Addicts are masters at disguising their disease.)

Natasha Minsker, associate director of the American Civil Liberties Union of Northern California, told East Bay Express that the drug-testing program could yield positive results from legitimately prescribed drugs or from marijuana used in a doctor's off hours. However, Prop 46 advocates note that the California Medical Board could craft regulations to make sure doctors are not penalized for legal prescriptions.

Would you want even the most highly trained surgeon to perform an operation, making precise incisions, with an alcohol- or opioid-induced hangover?

Medical professionals shouldn't get a free pass. 

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