California’s Proposition 46 Fails, $250K Medical Malpractice Cap Remains

By MICHAEL R. BLOOD | November 6, 2014

The proposal was billed as an attempt to weed out and punish boozy, pill-popping doctors who put patients at risk: Many physicians would be subject to random drug and alcohol tests, while a decades-old cap on courtroom damages for medical negligence would be lifted.

But Proposition 46 failed Tuesday, after a cascade of negative advertising financed by insurance and physician groups. Voters decided they would be better off without it.

“Californians rejected Proposition 46 because increasing payouts in medical lawsuits would have increased health care costs and reduced access to needed medical care,” Dustin Corcoran, chief executive of the California Medical Association and chairman of the No on 46 campaign, said in a statement.

He added that “in this health care environment, undermining California’s long-standing malpractice cap is a political poison pill.”

The fight over the proposal created the most expensive campaign in the state this year, pitting doctors and insurance companies against trial lawyers. The initiative attracted national attention, in part because it called for making California the first state to impose random drug and alcohol tests on doctors.

But the reason the contest lured more than $60 million in donations was its proposal to lift the cap on damages for pain and suffering caused by doctor negligence to $1.1 million, up from $250,000.

Consumer advocates and lawyers who backed the proposal said it was about safety and point to cases in which drug- or alcohol-addicted doctors have harmed patients. In one ad, Democratic Sen. Barbara Boxer says, “Make sure impaired doctors don’t treat someone you love.”

A third provision called for requiring doctors to check a statewide database before prescribing painkillers and other powerful drugs in an attempt to curb pill-shopping and other abuses.

Bob Pack, whose 10-year-old son and 7-year-old daughter were run over and killed by a drug-abusing nanny in 2003, was pushing the proposal in hopes of stopping doctors who recklessly prescribe painkillers.

“We’ve opened the eyes of all Californians about patient safety,” he said in a statement.

In this election, he added, “insurance industry profits trumped patient safety.”

Insurance companies, hospitals and physician groups depicted the proposal as a sugar-coated pill that was really about fattening attorneys’ wallets.

California’s 1975 medical malpractice law was the first in the nation to impose caps and paved the way for roughly 30 states to adopt some limits on payouts. It also was used as a template for national proposals.

It made California rates among the lowest in the nation. According to the California Medical Association, the average doctor in the state paid $26,511 last year in premiums compared with $99,290 in Connecticut and $137,412 in New York, two states without caps.

The nonpartisan Legislative Analyst’s Office concluded that raising the cap on medical malpractice damages will increase government health care costs “from the tens of millions of dollars to several hundred million dollars annually.” The higher costs could be offset to some extent by uncertain, but potentially significant, savings from prescription drug monitoring and doctor testing, the analyst found.

Research has indicated the rates of drug and alcohol abuse for health care professionals are similar to those in the general public, if not higher because of access to prescription narcotics.

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