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.

Vote wisely.

Safe Cycling: The Legal Effects of the Three-Feet Rule

As you may know, Vehicle Code Section 21760, aka the Three Feet for Safety Act, took effect last month. The new law requires motorists to give at least three feet when passing cyclists. Sounds simple enough.

But when the road narrows and giving three feet means crossing a double-yellow line, which is illegal, or when other traffic or road conditions make it difficult to comply with the rule, the motorist must “slow to a speed that is ‘reasonable and prudent, and may pass only when doing so would not endanger the safety of the operator of the bicycle’.” This is where things get murky.

This to-pass-or-not-to-pass grey area adds an interesting new element to car-bike cases. As CHP explained to San Jose Mercury News, “the new three-foot rule doesn't mean a driver has to remain stuck behind a cyclist until the road widens. A driver can get closer than three feet and pass but only at a ‘safe and reasonable’ speed.”

Cyclists must also be aware that when five more cars are following then and can’t pass, the cyclists must stop or move to the right to let the cars pass (much like a slow-moving vehicle).

The three feet rule is intended to promote safe cycling. Will it help? We sure hope so. As more people become aware of the law, they will ideally become more mindful when approaching bikes on the road.

In the unfortunate event that a motorist does collide with a bike, discovering whether the motorist violated the law adds another challenge to a personal injury action. The driver must overcome evidence that he or she clearly invaded that three-feet buffer.

The width of bike and auto lanes, as well as the width of the vehicles themselves, will become more important during discovery. Lawyers should be more precise in depositions regarding the distance between the car and the bike. More questions should be asked to establish whether a defendant knew or did not know about the three-foot rule. Plaintiffs’ lawyers should also educate their cyclist clients about the issue before deposition.

If a case goes to trial, we may even see a new jury instruction based on the language of the statute.

If you’ve been side-swiped by a vehicle (a definite three-feet violation!) and sustained significant injuries, call our office for a free consultation. For more information on steps to take following a crash, read this article from NorCal Cycling News. Keep the rubber side down.