Lawyers, drugs and money: Calif. advocates push to raise malpractice cap

Alex Smick suffered a back injury and started seeing a pain management doctor when he was 18. Within two years, he had been prescribed Vicodin, OxyContin and eventually morphine. He became dependent on the addictive drugs and decided to check himself into a Laguna Beach, Calif., hospital to detox on Feb. 22, 2012.

The next morning, he was dead. He was just 20 years old.

“Between 5 and 11 p.m., they gave him 11 medications,’’ said his mother, Tammy Smick, a special education teacher in Downey, Calif. “From 11 pm., they stopped checking on him. When they checked at 6 a.m., he was already dead. He basically was drugged to death.”

Heart-wrenching tales of medical malpractice — from a little girl who lost part of her arms and legs after being left waiting in an emergency room for hours to a woman who had a quadruple amputation after a botched hysterectomy — are surfacing in the aggressive campaign to put The Troy and Alana Pack Patient Safety Act on the California ballot this November.

The medical industry is widely opposed, primarily because it would raise the medical malpractice cap from $250,000, set in 1975, to an inflation-adjusted $1.1 million. The cap applies only to noneconomic damages, such as pain and suffering.

If the ballot initiative passes, California would be the first state to require random drug and alcohol testing of doctors.

“When we ask people about physician drug testing, they’re shocked that it’s not already happening,” said Carmen Balber, executive director of Consumer Watchdog, an advocacy group in Santa Monica that’s backing the measure. “It’s going to raise eyebrows for voters to have the medical industry stand up in opposition to random drug testing. What is it that these physicians are trying to hide?”

Balber said the measure is proposing the same drug testing regulations that airline pilots face. The California Medical Board estimates that 18 percent of doctors suffer from substance abuse during their careers. If it passes, the initiative would require doctors to report another doctor suspected of abusing drugs or alcohol on duty.

The initiative would also require doctors to check a statewide database before prescribing certain controlled substances to prevent patients from going from doctor to doctor to get more drugs than a single doctor would prescribe.

The measure has garnered more than 840,000 signatures — well above the 504,000 needed — and a broad coalition of medical associations and health insurers are ready for battle.

About $32 million has been set aside to defeat the measure, according to the California Medical Association (CMA).

“This is a ballot measure written by trial lawyers to benefit trial lawyers, but it will increase health care costs, reduce access and put personal privacy at risk for everyone else,” Dr. Richard Thorp, president of the CMA, said in a statement. “Proponents have openly admitted that the drug provisions — including drug testing of physicians — were only included because they polled well and were the ultimate sweetener.”

Opponents argue that a higher cap will result in billions of dollars in higher health care costs annually — about $1,000 a year for a family of four.

“These higher costs will be passed to every purchaser and provider of health care — state and local governments, employers, employees, consumers and taxpayers,” according to Patients and Providers to Protect Access and Contain Health Costs, the opposing coalition.

“It’s going to be a very large fight. There’s no doubt about it,” said Bob Pack, a tech entrepreneur and the main sponsor of the measure. “The medical insurers and the doctors and hospital organizations that want to keep things as they are are willing to put big money to fight this. I think we have a very strong message that strikes a chord with voters in California … Is $250,000 a fair compensation for the death of a child or a loved one?”

Pack’s personal story sends a strong message. He has been pushing for more medical accountability since his children, Troy, 10, and Alana, 7, died in 2003. They were walking to an ice cream store when a car jumped the sidewalk. The driver was drunk and heavily medicated on prescription painkillers.

It was later found that the driver was a doctor shopper and had “received thousands of pills from six different doctors in the same facility without any confirmation that she was in pain,” Balber said.

Checking the state’s online prescription database, which Pack helped build and design, could have stopped the driver from getting duplicate prescriptions, she said.

The Centers for Disease Control and Prevention (CDC) has said that prescription drug abuse is the fastest-growing drug problem in the United States.

“Many abusers of opioid pain relievers are going directly to doctors for their drugs,” said the CDC director, Tom Frieden, in a report released in March. “Health care providers need to screen for abuse risk and prescribe judiciously by checking past records in state prescription drug monitoring programs. It’s time we stop the source and treat the troubled.”

USA Today reported this month that more than 100,000 doctors, nurses and other medical professionals are abusing or are dependent on prescription drugs in a given year.

U.S. Attorney General Eric Holder recently focused attention on the rise in heroin deaths, saying that “addiction to heroin and other opiates, including certain prescription painkillers, is impacting the lives of Americans in every state.”

Smick said she believes that if the Patient Safety Act had been on the books earlier, her son might not have died.

“He was seeing a pain management doctor and getting highly addictive medication,” she said. “He wasn’t a drug-seeking kid. He was 18 and was being prescribed month after month with no plan for treatment.”

The Smicks have filed suit, and the case is pending.

“The thing about the $250,000 cap is that it makes access to the justice system very difficult,” she said. “You have to find an attorney willing to take the case or find your own money.”

Smick said her support of the act has less do with monetary reward than accountability and safety.

“We’re trying to prevent this from happening to another family,” she said.

Pack said that medical malpractice is rarely exposed unless a case goes to court.

“I’m trying to protect citizens from prescription narcotics, drug abuse,” he said. “I’m trying to help with patient safety and victims’ rights. I know what I’m up against, but I just very strongly believe in it, and I think most people do when they understand the facts.”