Problems with our propositions

A joint committee of the state Legislature this week held a hearing to air the pros and cons of Proposition 46, the measure on the Nov. 4 ballot that would, among other things, raise a 39-year-old cap on noneconomic damages in medical malpractice lawsuits and also require random drug testing of doctors.

The hearing may not have changed anyone’s mind on the merits of Proposition 46, but it did underscore why an initiative-reform measure signed last week by Gov. Jerry Brown will be an immense improvement in the exercise of direct democracy in California.

How so?

Let’s start with the money. The reform signed by Brown, SB 1253, will require the secretary of state to post on the Internet and regularly update a list of the top 10 donors to the campaigns supporting and opposing ballot measures.

Already this year we’ve seen the usual barrage of misleading and deceptive television ads on propositions. So far, the worst offender has been the No on 46 campaign, which unleashed a commercial that makes the utterly unsupportable claim that the measure would subject Californians to having their private medical records hacked.

The records in question are reports doctors can file with what is known as the CURES database, which records when doctors write a prescription for potentially addictive drugs - the kind that have led to an epidemic in prescription-drug abuse.

Widespread use of the database would make it possible for a physician to determine whether a patient is “doctor-shopping” to obtain multiple prescriptions. And it would enable pharmacists to identify doctors who are grossly overprescribing those drugs.

Use of that system is now voluntary, and only a small percentage of medical providers submit the information. Proposition 46 would require that all providers report such prescriptions. The database is maintained by the Department of Justice and has never been hacked. Arwen Flint of the department testified Monday that the information is protected by “very robust security” protocols.

That cannot be said of one of the principal funders of the No on 46 campaign, the Kaiser Foundation Health Plan. It has four times had to report breaches of patients’ medical data, including a 2013 case in which it had to inform 49,000 patients that the security of their medical records had been compromised.

Kaiser has contributed at least $14.7 million of the approximately $90 million that has been raised to fight Proposition 46. And then there are the medical malpractice insurance companies.

Data from the Department of Insurance show that in 2011 these companies received $530.6 million in premiums and paid out $116.3 million in losses. The two market leaders in this highly profitable industry, The Doctors Company and Norcal Mutual Insurance, have each contributed at least $10 million to the campaign.

For voters, knowing who’s paying how much to tell them what is useful information indeed.

The hearing also pointed out the potential benefit of another reform included in SB 1253. It would create a 30-day public review period during which a proposed initiative could be amended and also give the Legislature a chance to perhaps come up with a compromise that would be acceptable to the proponents.

That might have allowed for a fix to a problem with Proposition 46. It says medical providers must immediately begin filing reports with the CURES database, but the system will not be capable of handling that level of demand for at least several more months.

That’s a flaw that could have been fixed beforehand had the new review period been in place.

The sponsor of the initiative, David Pack, whose two young children were struck and killed by a car driven by a drugged-up driver who had received multiple prescriptions, has diligently tried to work with the Legislature to come up with solutions to what he sees as a flawed approach to dealing with prescriptions for dangerous drugs and a broken medical malpractice system.

He testified Monday that he turned to an initiative because he has been unsuccessful in getting legislation passed. The reason, he said, is that doctors, insurance companies and the pharmaceutical industry have an unbreakable hold on the Legislature.

Perhaps the reforms that will take effect next year will inspire a hybrid brand of lawmaking. An initiative could be filed and circulated, and after the proponents have collected a quarter of the required signatures the Legislature would be required to conduct a hearing.

A compromise would become possible.

Then, maybe - just maybe - when someone files an initiative the objective will be to solve a problem rather than to start a fight.

Timm Herdt is a columnist for the Ventura County Star.