Proposition 46 Has Attorneys and Physicians At Odds

As the November election approaches, one state proposition has drawn the most money from top contributors. Proposition 46 would raise the cap on pain and suffering damages in medical malpractice cases. But, the measure could change the way doctors practice.  

Proposition 46 is actually three measures in one. It would require drug testing of doctors. It would require physicians to check a database before prescribing patients addictive substances. And it would raise the limit on damages awarded in medical malpractice suits. If that seems like a lot to take in, Consumer Watchdog’s Carmen Balber says the measure was deliberately written that way.   

“You write a measure so it will be successful at the polls," says Balber. "The stupidest thing you can do in an initiative campaign is write an initiative that the public doesn’t understand and doesn’t want."

But opponents say the measure is ‘carelessly thrown together.’

“This initiative is really about raising the cap, and everything else is just a distraction," says Dr. Ruth Haskins, with the California Medical Association.

The ‘cap’ is the $250,000 limit on pain and suffering awards in medical malpractice suits. It was set in 1975 under MICRA – The Medical Injury Compensation Reform Act.  Prop 46 would raise the cap to over $1 million. Haskins says that would make medical liability premiums go up.

“Physicians just won’t be able to afford to practice medicine in California," she says.

The California Medical Association says governments and taxpayers will pay more too. Haskins, who is a obstetrician and gynecologist, says it would make doctors like her change the way they practice to avoid lawsuits.

“If this passes, I might be saying, ‘let’s order that ultrasound now to see if there’s a problem’ and that ultrasound is going to be an increased cost to the medical health care system," says Haskins.

But attorneys say the current cap on damages already affects how they work. Sacramento law firm Kershaw, Cutter & Ratinoff says the cap forces lawyers to make business decisions about medical malpractice cases.

“We probably take 5 percent or less of the cases that are presented to us," says Attorney J.R. Parker.

He says it costs tens of thousands of dollars to build a case. So most of their cases involve the prospect of significant financial awards. Young people whose injuries have prevented them from working, or people who require lifetime medical care. MICRA does not cap those economic losses. Parker says he’s extremely selective about pain and suffering cases.

“Wrongful death cases are one of the best examples," he says. "Where, even if you’ve got a lost grandfather or a lost child, there’s no real loss of earning capacity that anyone could attach to that death. So the grizzly reality of MICRA is that those cases are only worth $250,000.”

Parker says those limitations don’t apply with other causes of injury.

“The same kinds of injury that happen to be caused by a defective product or a truck driver that falls asleep, or any number of circumstances where someone is negligent, doesn’t do what they were supposed to do, and someone is injured as a result, the jury gets to decide how much that injury is worth in terms of pain and suffering," he says.

Lifting the damage cap has been considered in the legislature without success.  Wesley Hussey, Government Professor at Sacramento State University says that’s typically the point at which proponents take a measure to voters. He says the drug testing and the prescription drug database aspects of Prop 46 are ‘sweeteners’ added to win public favor.

“So it’s really about changing MICRA, but we’ve found over the years that kind of complicated technical issues like that don’t work well with the voters, so proponents have found something that’s easier to talk about… kind of bring voters in on that issue, and they get what they really want, which is the change to MICRA," says Hussey.

He says ‘sweeteners’ aren’t inherently bad – but they don’t always work. They can confuse voters, and confused voters often vote no.  

“They’re very good at making decisions on social issues, where it’s just basically their values and their preferences, but kind of complicated and technical issues, voters don’t understand it," he says. "And throwing money around to scare them or convince them to vote for it, that’s how propositions work often sadly in California.”

Lifting the cap would allow attorneys to earn more money on cases. Doctors are concerned about costs to their industry. Both professions bring in an average salary of more than $150,000 a year.