Attorneys and doctors square off over Prop. 46
Two powerful professional groups - doctors and lawyers - are squaring off and spending more than $65 million on Proposition 46, one of six statewide measures on the Nov. 4 ballot.
Even the measure’s official title - “Drug and Alcohol Testing of Doctors. Medical Negligence Lawsuits. Initiative Statute” - is controversial, with critics asserting that Attorney General Kamala Harris, who assigns names to ballot measures, intentionally downplayed the initiative’s main goal.
“This is about the cap,” said Dr. Peter Bretan, a urologist who practices in Sonoma, Marin, Mendocino and Lake counties, speaking for the No on 46 campaign. “It was inevitable it might come to something like this.”
He was referring to the Medical Injury Compensation Reform Act, or MICRA, enacted by the Legislature in 1975. It set a $250,000 cap on the noneconomic damages, commonly known as pain and suffering, that may be awarded to a person injured by medical malpractice.
Trial lawyers, whose fees also were capped by the law, have chafed under it for 39 years and repeatedly failed to get it adjusted or eliminated. Proposition 46 would boost the cap to reflect inflation, effectively raising it to $1.1 million, with subsequent annual adjustments, according to the state’s Legislative Analyst. There is no limit on compensation to patients for economic damages, such as medical bills or loss of income.
A massive coalition of medical groups, including the state’s medical, dental, nurses and hospital associations, as well as teachers and business groups, labor unions, the Republican Party and the American Civil Liberties Union oppose the measure.
They have amassed a war chest of more than $57 million, including more than $10 million from the California Medical Association Physicians Issues Committee and $6 million in loans and donations from the Kaiser Foundation Health Plan, and are busy running media spots on the issue.
Supporters, headlined by California Sen. Barbara Boxer, consist of seven organizations, including the Consumer Attorneys of California, a group of nearly 3,000 attorneys formerly known as the California Trial Lawyers Association. The group’s political action committee contributed $1.1 million to the Yes on Proposition 46 campaign’s $8.5 million total, nearly all of it from trial lawyers and law firms.
Lifting the cap on noneconomic damages is a matter of “fairness and justice,” said Jack DeMeo, a Santa Rosa trial attorney. “We all make mistakes - engineers, lawyers, doctors,” he said. “The system is supposed to respond to that.”
But the 1975 law put doctors in a “special category,” said DeMeo, who estimates he has handled 100 medical malpractice lawsuits in 56 years as a trial attorney. It’s difficult to convince the public to change the law because doctors “are still held on a pedestal,” he said.
Consumer Watchdog, a nonprofit group backing Proposition 46, cites a study published in the Journal of Patient Safety that found as many as 440,000 hospital patients nationwide die each year from preventable medical malpractice, the equivalent of “a 747 crashing every 10 hours.” In other reports, the number of preventable malpractice deaths ranges from 98,000 to 180,000.
DeMeo contends the cap should have been indexed to account for inflation. If it had been, critics note, the current $250,000 limit would equate to a cap just over $1.1 million today.
“I’d get rid of the whole damn thing,” DeMeo said. “Nobody else has any limitations (on damage for malpractice).”
Skeptics may think of noneconomic damage awards as a mask for attorney paydays, but DeMeo said they cover discomfort, disfigurement and emotional pain. Even a $1 million award for pain and suffering “is not much for someone whose face has been mangled or has lost two legs,” he said.
State Sen. Noreen Evans, D-Santa Rosa, who is also an attorney, said the cap is unfair “to the most vulnerable of victims” - children, nonworking parents, retirees, the disabled - anyone without future wages, which are a “key metric for assessing economic damages in malpractice cases.”
California was the first state in the nation to cap noneconomic damages at a time when many physicians could not afford malpractice insurance, said Bretan, who specializes in urologic oncology. The $250,000 limit is enough to satisfy most claims, while it prevents “frivolous lawsuits,” he said.
At the seven-figure level, he said, “you have basically erased the cap,” he said.
Proposition 46 is also “an access issue,” Bretan said, asserting that it would drive up the cost of malpractice insurance, prompting physicians to retire, leave the state or go to work for hospitals. Rural areas like Sonoma, Lake and Mendocino counties would bear a disproportionate loss of physicians, he said.
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