PD Editorial: No on 46: A cynical approach to legislating

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Proposition 46 is a textbook example of shortcomings in California’s Legislature and its initiative process.

If you can get past the war on the airwaves, and the cynical effort to cloud the real goal of this initiative, you’ll find serious concerns — equal access to the justice system and the cost of running a medical practice — that aren’t easily reduced to snappy slogans.

At issue is the Medical Injury Compensation Act, or MICRA, which was passed in 1975, and signed into law by then-Gov. Jerry Brown, after doctors went on strike to protest skyrocketing malpractice insurance premiums. The law caps damages for non-economic damages, commonly known as “pain and suffering,” at $250,000.

Adjusted for inflation, the cap is the equivalent of $56,500 in 1975. Because most personal injury lawsuits are litigated on a contingency basis, with the plaintiff’s lawyer collecting a share of any judgment instead of hourly fees, it’s almost impossible to bring a malpractice case in California unless a large amount of lost wages is at stake. That tends to leave out children, stay-at-home parents,low-wage workers and retired people.

Trial lawyers have tried for years to persuade state legislators to adjust the cap. Doctors and insurers have tried just as hard to block any increase. Both sides have spent millions on lobbying and campaign contributions, and legislators have done nothing.

Proposition 46 is backed by Consumer Watchdog, a Santa Monica-based nonprofit that often sides with the trial lawyers. The group also sponsored Proposition 103, which gave the state insurance commissioner veto power of premium increases for auto insurance.

The commissioner also regulates malpractice insurance, and, as the Los Angeles Times reports, ordered rollbacks of $52 million in excessive premiums in 2012, suggesting that insurers are benefiting from MICA as much or more than doctors.

Proposition 46 would increase the cap on non-economic damages to $1.1 million — equaling the buying power of the 1975 cap — with annual adjustments for inflation. If that’s as far as it went, we might support Proposition 46.

Unfortunately, Proposition 46 isn’t limited to MICRA. The sponsors probably feared that the issue was too complex and arcane for an initiative campaign, so they tacked on two other provisions that we can’t support.

One would require doctors to use a statewide database when prescribing narcotics; the other would mandate random drug testing of emergency room physicians and testing after an unexpected death or injury.

The database is supposed to keep people from prescription shopping. That’s a fine goal, and the state database may be the answer, but it isn’t ready, and there’s no assurance that it will be accurate. On this, Proposition 46 jumps the gun.

The drug testing provision is clearly a political sweetener. It only applies to doctors in hospitals and doesn’t address any of other medical personnel involved in patient care. But it’s obvious the real point was to try to make this a debate about drug-addled doctors, and the attorney general helped with a ballot title that focuses on drug tests instead of malpractice cases. We don’t see the evidence to warrant this invasion of privacy.

There is a real issue hiding here, and the Legislature should address it, but The Press Democrat recommends a no vote on Proposition 46.

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