Will Proposition 46 suffer from an over-the-top advertising debacle?

A recent advertisement for Proposition 46 depicts a purported doctor in white coat adorned with casually strewn stethoscope over his shoulders sitting at a bar while ordering a drink, presumably other than ginger ale, while his pager goes off -- he's being called to the emergency room, no matter if he's in a drunken stupor. 

With this final flailing effort, Consumer Watchdog appears to have hurled its last lightning bolt in support of Proposition 46, the initiative to raise trial awards for pain and suffering in malpractice suits from $250,000 to $1.1 million. Consumer Watchdog, down to its last one million dollars, reportedly wagered the entire store on this last-ditch effort. It's a gamble that may have misfired.

While consumers are not as mesmerized by physicians as once they were, they're still not at a level where they believe that doctors in general have sunk to this level.  Physicians are still generally admired by the public. Physicians who fall short of public expectations suffer mightily in the court of public opinion and are subject to discipline by the medical board.  The public, more sophisticated than Consumer Watchdog realizes, are not easily misled. 

This latest ad depicting a presumably inebriated doctor on his way from the saloon to the emergency room may have overshot the mark and turned undecided Proposition 46 voters into NO votes on 46.  Consumer Watchdog reportedly depleted its campaign funds with this desperate advertisement and along with it sacrificed its own credibility.

PROPOSITION 45 HEATS UP

Enter now Paul Y. Song, MD, into the Proposition 45 debate. Actually, he's been there all along, has already appeared in my edits, testified at the all day hearing on 45 before it was known as Proposition 45,  and is said by some to be a prospective candidate for insurance commissioner.

In his editorial entitled "Why Are CA Doctors Breaking Their Hippocratic Oath on Prop. 45," Song asserts that the doctors and nurses opposed to 45 are protecting the insurance industry. He says "it is unconscionable." His main point seems to be that there is no conflict with the "independent commission" whereas "Covered California is actually run by purely political appointees." THAT is no news to us -- we don't know of any commission where prospective appointees are required to pass achievement tests and demonstrate that they know anything other than how to make political contributions. Song points out that some of the Covered California persons "have a long cozy history with the private insurance industry." Song points out with some relish that "it is the private health insurance industry and their administrators, many of whom have never cared for a patient, who are denying care, while telling doctors what treatment and drugs they can provide."

Song says that Prop. 45 "would simply apply the same regulatory framework to health insurance which has proven so successful regulating auto, home, and medical malpractice insurance in California." He likens Prop. 45 to Prop. 103 vis-a-vis auto insurance rates.

The juicier parts of Song's editorial include his telling certain persons and groups to "stop spreading ... lies." Take a look at it, and Young's editorial, and Bussey's. In many ways Prop. 45 is more substantial as important legislation than Prop. 46.

Our point is that while Prop. 45 if it passes will have the bite of law, its eventual teeth will be in the rules and regulations that follow. The proponents will need to make sure that the rules and regs are composed by forces that want it to succeed. Are they ready and prepared for the job?

References

You can follow Paul Y. Song on Twitter at www.twitter.com/paulysong; Bussey's editorial is referenced in our previous post & appears in UAPD Pulse; Young's editorial is referenced in our two previous posts and on the website for the California Neurology Society 

Proposition 46 -- last word, well, almost!

Proposition 46, most voters have figured out, is about raising the limit on "pain and suffering" from $250,000 to $1,100,000 if not more. This amount would be in addition to unlimited economic damages which is already the law. In other words, a cadre of lawyers whose specialty is medical malpractice would be emboldened to sue in circumstances where they might otherwise decline. Ask yourself what would be the consequence of so doing according to Proposition 46?

1) Most likely, insurance companies will raise their annual premiums for a family of four by about $1,000 to $1,250.

2) State and county hospitals, supported by tax dollars, often get virtually hopeless accident cases where medical error may occur even in the hands of the most skilled surgeons. To cover the costs of increased malpractice payouts it is likely that state and county taxes will go up. 

3) What about the system whereby physicians would be obliged to find out what drugs their patients were on before prescribing analgesics for pain. Truth is, I personally called into the system months ago to ask about a patient. That was before Proposition 46 was known. Nobody was home. I was advised that although the program existed in theory it wasn't funded well enough to have full time staff with telephone exchange and answering services. Not to worry, increased taxes should take care of that deficiency. But isn't this system the one we depend upon for privacy about our medical prescriptions? Additional safeguards will be needed. Not to worry about that, either -- increased taxes should pay for enhanced privacy protection, shouldn't it?  

Conclusion: the trial lawyers didn't do a scholarly enough job in putting Proposition 46 together. As written Prop. 46 puts ordinary citizens at risk for increased costs for health insurance premiums, for increased state and county taxes, and for invasions of privacy. It should be defeated. Vote No on 46.

Proposition 45: pro and con

Robyn G. Young, MD, president, California Neurology Society, presents her case for Prop. 45 in her editorial available on ca-neuro-society.org (it is also summarized in our previous blog in the end-of-article listing of references).

Now comes Stuart A. Bussey, MD, JD, president, Union of American Physicians and Dentists, who writes in the "The UAPD Pulse" why Prop. 45 does not deserve passage.

Bussey's piece makes these points:

1. Prop 45 would shift regulatory authority from an independent commission to one political figure who would then become a "pressure point" subject to special interests.

Comment: the independent commission is also subject to special interest pressure, but it's more difficult to get to an entire committee than one person. On the other hand, commissioners get their jobs by appointment, political appointment, not by scoring well on achievement tests.

2. Bussey points out that under the ACA administrative costs are limited to 20% -- anything over that "must revert back to patient services."

Comment: Trouble is that the insurance companies often try to sneak administrative costs into the "patient services" sector. Example are utilization reviews requested by insurance companies that seek to disguise them as "consultations."

3. If  Prop. 45 passes a likely revenge step the insurance companies will take will be to slash provider reimbursement. Agreed, that's what they'll do, not that they don't already do it. The independent commission has not roared its disapproval of provider abuse.

Comment: It's also likely that the insurance companies and MPNs (Medical  Provider Networks) will jettison hundreds of doctors as a way to reduce expenses (not that that hasn't already been done). That in turn will force the remaining doctors to see more patients faster (the short visit you get now will be made even shorter).

My opinion: if Proposition 45 passes, the next step will be the implementation of rules and regulations. Proponents should be ready to take that matter on from Day One. That means day-to-day readiness to participate in the regulatory process. Proponents feel they have a better chance at fair regulation with Proposition 45 than without it. Opponents are skeptical, and with good reason, e.g., the unions bent over backwards to get Brown elected Governor only to find out yesterday that he vetoed all three of their bills. Would a single insurance commissioner be different?

The latest re the ACA: a laboratory in San Jose has just  billed a doctor's office for laboratory work done for Medicare patients. The lab in question said that changes in the Affordable Care Act made in January of 2014 allows them to do so. We'll look into this matter and see what the current insurance commissioner wants to do --  it'll be a prelude to what he'd do were Proposition 45 to pass.

In our next blog, we're planning on a few parting shots re Prop. 46,

Question: When should lawyers be tested for drugs?

Answer: When they're awake.