The LA County Observer

Observations of a LA County Resident

The Problem with the Patient Safety Act

Written By: raconte - May• 07•14
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In case you missed it there was a press conference held at the Los Angeles County Registrar-Recorder’s office this past Monday, March 24th. The purpose of this press conference was to announce that they (supporters of the Patient Safety Act) were submitting 830,000 signatures to qualify for the November 2014 ballot. The proposition has three main components first to raise the cap on the limit of pain and suffering damages in malpractice cases from $250,000 that was set in 1975 to about 1 million dollars and to tie future awards to the rate of inflation. Second would be to mandate random drug testing of physicians and Third would be to require doctors to use the CURES database when prescribing opioids to help reduce physician and prescription shopping used by addicts to fills multiple scripts for opioids such as vicodin, Percocet, morphine and so forth.

As both a nurse and a victim of malpractice I know first hand the frustrations faced by victims of malpractice who struggle to find representation as attorney after attorney turn them away, not for lack of a valid case but because of the 1975 MICRA cap which makes it nearly impossible to mount the defense needed to take a case to trial. Back in 1975 physicians, especially obstetricians clamored that settlements for pain and suffering in malpractice case were causing rising premiums and potentially driving good doctors out of the state. Such doom and gloom predictions lead to The Medical Injury Compensation Reform Act (MICRA) of 1975. This statute was enacted by the California Legislature in 1975 and signed into law by then Gov. Jerry Brown (yes, the very same Gov. Brown that currently serves as our state’s chief executive) that same year. MICRA’s constitutionality has been repeatedly challenged, but mostly upheld by either the California Courts of Appeal or the Supreme Court of California – thus almost all of MICRA remains in effect and still part of California State law.

Personally, I don’t think its asking all that much that the MICRA cap increases, it’s been nearly forty years since the cap was placed on pain and suffering awards in malpractice lawsuits. Unfortunately, there’s a large contingent (especially in the healthcare arena) that are opposed to increasing the MICRA cap. In February of this year Darrell Steinberg, Senate President pro Tem of the California Legislature, introduced SB 1429 (follow this link to learn more – a “spot bill” that would amend MICRA and lift the cap on pain and suffering awards in malpractice lawsuits. At this point in time the bill appears stalled and it looks like the voters will have the final say on this issue in November.

The second part of the Patient Safety Act of 2014 is a provision that would require the random drug testing of physicians. At the press conference Mr. Jaime Court rationalized that airplane pilots, bus drivers and truck drivers are required to submit to drug tests, why not physicians. However, during the press conference not one of the grieving families that shared their story of the loss of a loved one to malpractice cited physician impairment as the cause of the error that lead to the death of their loved one. Most of the stories presented were due to human error on the part of the physician and in another case the error were due to nurses failing to due their job. It would’ve been helpful if those of us attending the press conference had been provided a story on how physician impairment had impacted them.

A 2000 Rand report estimated that impaired physicians have about a 25% higher claim rate than the non-impaired physician and twice the negligence claim rate. So it seems to make sense that physicians should undergo random drug test, but should they be the only ones? The actor Dennis Quaid is on record supporting the Patient Safety Act and the random drug testing of physicians. However the medical error that endangered the lives of his twins wasn’t that of a physician but of the hospital pharmacist who placed the wrong strength of heparin in the units drug lock box and the nursing team that failed to follow simple nursing protocols that require nurses to double check when administering certain types of medication, such as insulin and heparin. The process is simple the nurses read the vial’s label to ascertain that it’s the right medication, the right strength and right amount, none of this was done by the Cedars-Sinai nurses in the Quaid incident.

So why just mandate random drug testing of physicians only? If you really want to ensure that impaired healthcare providers are weeded out before they make an error that can lead to harm or even death to the patients why not mandate random drug testing on any member of the healthcare team that has access to drugs, such as pharmacists, nurses, respiratory therapist and so forth. And since the people are being asked to weigh in on this issue, then why should the physician bear the burden of paying for these random drug test – the state should. I also wonder whether the voters can mandate what is in reality a regulation? Isn’t this the responsibility of our legislature or the Medical Board?

Finally, the requirement to that all physicians use the CURES database prior to writing a prescription for a patient for such medication as opioids and other schedule II through schedule IV drugs. Forty-eight states have some form of prescription drug monitoring program in place, California is one of those states but few physicians use the CURES database. Passage of the Patient Safety Act would require physicians to use this system, but I wonder if an evaluation has ever been done to learn why so few physicians use this system. I know from first hand experience that an unwieldy computer program can be a huge obstacle for a practitioner. While a nurse at a local area hospital the computer system that had been designed for the nurses in the NICU was so horrible that the nurses wished the computer would simply “die” and the nurses seldom used it (this was a very long time ago). On the other hand the respiratory therapists (RT) seemed charmed by it. It turns out that when the program was developed for our NICU, the RTs were closely involved in its development, the nurse not so much, which explains why the RTs felt so at home using it. Physicians already deal with more and more pressures placed on them to use electronic medical records, order prescriptions electronically, and complete their patient examination in 15 minutes and so forth. Thus when mandating physicians to use yet another electronic system, this time to check whether or not their patient is doctor shopping or not that system better be very doctor friendly.

Just as the provision mandating that physicians submit to random drug testing the provision on using CURES focuses in on physicians only. Why? According to the California Department of Justice CURES can be used by licensed prescribers, licensed pharmacists, law enforcement personnel and regulatory board personnel strictly for patient care or official investigatory/regulatory purposes. So why not mandate that pharmacists check CURES when a person comes into their pharmacy with a prescription that requires being checked by the CURES system. Doing so is a good way to catch the potential pill mill, not to mention a patient that might’ve slipped by the doctor’s scrutiny.

The Patient Safety Act of 2014 has potential, but I fear that by including so many parts that are in some way disparate from the primary goal, which is to raise the MICRA cap, voters might not vote in the affirmative. The proposition is billed as the Patient Safety Act, so having doctors get drug tested and requiring that doctors check the CURES database makes sense – this involves patient safety. Sorry to say, but raising the MICRA cap has nothing to do with patient safety. So since leaving the press conference I’ve conducted several “man on the street” interviews and found that many of the people I’ve spoken to are more inclined to vote no on the Patient Safety Act of 2014 if they don’t support one or more of the three items. Does this mean the Patient Safety Act of 2014 is doomed to failure, not necessarily but I do see it as a problem? I know that as it stands now I’m not likely to vote in the affirmative, because though I support all three components of the proposition in principle I can’t vote for it if it mandates only the physician to be subjected to drug testing and using the CURES database. Yes, the Patient Safety Act of 2014 can always be amended down the road, but that doesn’t mean it will. Just ask the author of MICRA who thought that a rider to tie the cap to inflation would follow – which it never did.

To further complicate matters is the recent decision from the Florida Supreme Court that struck down that state’s 10-year old MICRA LAW. Whether it’ll have an impact on our MICRA law is not yet known – but the Florida ruling might just set a precedence that can’t be ignored.

It’s quite possible that with so many issues that evoke strong responses in individuals the authors of the Patient Safety Act of 2014 may very well have shot themselves in the foot. I know that as much as I’m in support of raising the MICRA cap I can’t in all good conscience vote for a proposition that also includes provisions that mandate random drug testing of physicians (and makes the physician pay for the drug testing themselves) but ignores other key healthcare providers whose impairment can also cause medical errors. Nor can I vote to mandate physicians use the CURES database when other key people, specifically pharmacists, are excluded from the same mandate.

So I’ve had my say on this matter. Here are links to both the supporters’ ( and the opponents’ ( websites. I hope you’ll take the time to peruse both sites and inform yourselves. You might also find the following links informative, the first provides the actually language of the Patient Safety Act of 2014 ( The second provides the link to the Secretary of State campaign reporting site where you can investigate who’s giving what money to support the Patient Safety Act of 2014 campaign (

Soon Californians will be bombarded by mailers, ads and commercials many dramatic and meant to pull at your heartstrings. There’s nothing wrong in this, but educate yourself beyond the rhetoric (both pro and con), discuss the proposition with those whose opinion you value and finally slog through the very complicated language of the proposition that is available in your voter’s pamphlet – because how we vote on this proposition may have unintended consequences, just as when our state legislature passed MICRA back in 1975 only to see what that bill wrought 38 years later.

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