Troy and Alana Pack had spent the day at their neighborhood Halloween party in Danville, a suburb of San Francisco. Ten-year-old Troy went as a baseball player, and 7-year-old Alana was a good witch. In the afternoon, they changed out of their costumes and set out for a walk with their mother. Destination: Baskin-Robbins.

“Alana, she liked anything with chocolate,” says their father, Bob Pack. “Troy, for sure, bubble gum ice cream, because he liked counting the bubble gums that he would get.”

Bob Pack stayed home. His family made it only half a mile down the road before his phone rang: “I received a call from a neighbor screaming there’d been an accident. And I raced down there.”

An impaired driver had veered off the road and hit Troy and Alana head-on. Pack was doing CPR on Troy when the paramedics arrived.

“I remember telling them I love them, and hang on. Just praying that they could hang on,” he says

Troy and Alana were pronounced dead at the hospital. In the months after their death, Pack’s wife, Carmen, found solace in her Catholic faith. Bob Pack was angry.

“I think, for me to get through, I needed action,” he says, “and I needed to take action for justice for Troy and Alana, and also for doing something that I thought maybe I could change to benefit others in the future.”

That was nearly 11 years ago. Pack quit his tech job to become an advocate. Over the past decade, he has helped write seven bills in California’s Legislature. None of his efforts have been bigger than the one he’s working on for the November election: Proposition 46, a patient safety initiative. It’s complex and has three distinct proposals.

Requires Doctors To Check Prescription Database

The first proposal aims to curb so-called doctor shopping. Investigators in the Pack case found the driver who killed his children was abusing prescription narcotics.

“She had gone to numerous doctors, saying that she was under different pain — neck pain, back pain, leg pain, elbow pain,” Pack says. “They, in my view, recklessly wrote prescriptions for her, for thousands of pills.”

Pack set out to help the state build a database where doctors can see how many times a patient has been prescribed serious narcotics, like Vicodin or Oxycontin. The result is the Controlled Substance Utilization Review and Evaluation System, or CURES database.

Proposition 46 would make it mandatory for doctors to consult the database. California would become one of nine states requiring doctors to check before prescribing painkillers to first-time patients.

After passing similar laws, both Tennessee and New York saw a significant drop in the number of narcotics prescriptions written. Studies have verified the correlation, but they acknowledge that drug abusers may be turning to street drugs such as heroin instead.

Many doctors in California like the database. Some have called it indispensable. But they don’t like being told how to practice medicine.

“The problem with the current way the ballot measure is written is it makes it mandatory to have that database checked,” says Dr. Richard Thorp, president of the California Medical Association. He says technical glitches have made the database unreliable.

Lifts Cap On Malpractice Awards

Many doctors are also unhappy about another big piece of the measure: a proposed change to the cap on “pain and suffering” awards in medical malpractice lawsuits.

After his kids died, Bob Pack wanted to sue the doctors who prescribed drugs to the driver. “I set out and talked to about eight lawyers,” he says.

They all turned him down. They told him a 1975 state law limited the malpractice award he could get to $250,000. That meant puny attorneys’ fees. The case wouldn’t be worth the lawyer’s time.

“My reaction was ‘What?!’ That’s not democratic. That’s not America,” Pack says. “We all have the right to the court system.”

The law that set the cap is called MICRA, the Medical Injury Compensation Reform Act of 1975, passed with the intention of keeping medical liability insurance costs low. Several other states followed suit. California’s law caps only noneconomic damages, or pain and suffering awards. Economic damages — for medical expenses or lost wages — aren’t capped.

But economic damages were no help for Pack. Children have no jobs, no lost wages. And his children had no ongoing medical bills.

“So the victim gets victimized a second time,” Pack says. “[He gets] no accountability or justice through the legal system.”

Some states have ruled such caps on pain and suffering awards unconstitutional.

Pack thinks California’s noneconomic malpractice award should at least be adjusted for inflation. Proposition 46 would raise the cap from $250,000 to $1.1 million and provide an annual adjustment for inflation in the future.

But the CMA’s Thorp sees a big problem: “That will encourage additional lawsuits in the system.” He argues more lawsuits will cause malpractice insurance premiums to go up, and those costs could drive doctors out of California.

“You’ll start to see it become more difficult to recruit doctors to California,” he says.

Mandates Drug And Alcohol Testing For Doctors

The third proposal in the proposition has been the centerpiece of the “Yes on Prop. 46” campaign, inspiring campy ads of airline pilots and police officers dancing through the stalls of a public restroom.

Adding doctors to that list seemed like an easy sell. Early polls indicated voters strongly favored the idea — many thought it was already law. In fact, if Proposition 46 passes, California would be the first state in the country to require drug testing of doctors.

Proposition 46 would give the Medical Board of California a year to set up a system to test doctors for drug and alcohol use, both randomly and within 12 hours after an unexpected patient death or serious injury at the hospital.

Doctors groups say that goes too far.

“This approach is too heavy-handed and too inappropriate,” says Thorp. He says hospitals already have systems in place to suspend doctors who show up to work intoxicated.

The two campaigns have fought back and forth over just how much of a problem there is with impaired doctors.

Regardless, Proposition 46 author Pack says, not enough is being done.

“The medical board has no authority and no mandate to be able to find out who these guys are, and weed them out or get them help,” he says.

But the focus groups revealing voter support for the idea of doctor drug testing were convincing. That has opponents calling the provision nothing more than a political gimmick.

“The only reason that was added to the proposition is because it polled well with voters,” says Thorp. “They’re just hiding the fact that they’re trying to increase the cap on noneconomic damages so that the payouts to trial attorneys can increase.”

Doctors and insurance companies have amassed $57 million to fight Proposition 46, making this the most expensive campaign of the fall election. They’re outspending lawyers 10 to 1 on ads aimed at swaying voters toward a “no” vote. None of them even mentions doctor drug testing.

Early polls showed strong support for the measure — 58 percent. But that support had dropped to 34 percent support in mid-September. Twenty-nine percent of voters said they hadn’t yet decided.

This story is part of a reporting partnership between NPR, KQED and Kaiser Health News.

Transcript :

AUDIE CORNISH, HOST:

In California, voters will have to decide the fate of a complicated and controversial ballot measure in the November election. Proposition 46 aims to tackle painkiller abuse as well as malpractice caps and mandatory drug and alcohol testing of doctors.

The initiative’s backers say it’s all about patient safety. Doctors have a different take. And they’ve raised nearly $60 million to try to defeat it. It’s the most expensive campaign of the fall election in California. From member station KQED, April Dembosky explains the roots of this measure started with a tragic accident more than a decade ago.

APRIL DEMBOSKY, BYLINE: Troy and Alana Pack spent the day at their neighborhood Halloween party in Danville, a suburb of San Francisco. Ten-year-old Troy went as a baseball player, and 7-year-old Alana was a good witch. In the afternoon, they changed out of their costumes and set out for a walk with their mother; destination – 31 flavors.

BOB PACK: Alana, she liked anything with chocolate. Troy, for sure, bubblegum ice cream because he liked counting the bubblegums that he would get.

DEMBOSKY: Their father, Bob Pack, stayed home. His family made it only half a mile away before a driver veered off the road and hit Troy and Alana head-on. Pack rushed to the scene.

PACK: I remember telling them I love them, hang on, just praying that they could hang on.

DEMBOSKY: Troy and Alana were pronounced dead at the hospital. As details of the accident emerged, Bob Pack’s grief turned to anger. Investigators discovered the driver had been abusing prescription narcotics.

PACK: And she had gone to numerous doctors saying that she was under different kinds of pain – neck pain, back pain, leg pain, elbow pain. And they, in my view, recklessly wrote prescriptions for her for thousands of pills.

DEMBOSKY: So he quit his tech job to become an advocate. Over the last decade, he’s evolved into a savvy political player.

PACK: I think for me to get through I needed action. And I needed to take action for justice for Troy and Alana and also for doing something that I thought maybe I could change to benefit others in the future.

DEMBOSKY: The first thing Prop 46 would do would require doctors to check a database of narcotics prescriptions before prescribing to first-time patients. California would become one of nine states to do this in an attempt to cut down on drug abuse.

PACK: That is the key to preventing doctor shopping.

DEMBOSKY: Many doctors in California like having the database. But they don’t like being told what to do. Doctor Richard Thorp is president of the California Medical Association.

RICHARD THORP: The problem with the current way that the ballot measure is written is it makes it mandatory to have that database checked.

DEMBOSKY: Bob Pack also wants to overhaul the state’s medical malpractice laws. He was so upset about the doctor shopping, he wanted to sue the doctors that prescribed drugs to the driver. But no lawyer would take his case.

PACK: I set out and actually talked to about eight lawyers.

DEMBOSKY: They told him a 1975 state law capped the malpractice award he could get for pain and suffering. That meant puny attorneys’ fees, so no case.

PACK: And so the victim gets victimized a second time not only by the harm or the loss of a loved one, but then they get no accountability or justice through the legal system.

DEMBOSKY: Prop 46 would adjust the cap for inflation from $250,000 to 1.1 million. Doctors don’t like this either.

THORP: That will encourage additional lawsuits in the system.

DEMBOSKY: That’s Doctor Richard Thorp again of the state medical association. He argues more lawsuits will cause malpractice insurance premiums to go up. And that could drive doctors out of California.

THORP: You’ll start to see it become more difficult to recruit doctors to California. And you’ll see doctors in the middle of their career start to look at it and say, maybe I could find a practice someplace else in another state where it would be more financially viable.

DEMBOSKY: But nothing rankles doctors more than the third part of the proposition that would require them to undergo random drug testing. Thorp says this is nothing more than a political gimmick.

THORP: The only reason that that was added to this proposition is because it polled well with voters.

DEMBOSKY: But sentiments have shifted. Recent polls show that early support for the measure is now waning. For NPR News, I’m April Dembosky in San Francisco. Transcript provided by NPR, Copyright NPR.