Proposition 46 Debate Heats Up in California

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In November Californians will have the opportunity to significantly change medical malpractice law in their state.

Proposition 46 would raise California's cap on non-economic damages awarded in medical malpractice lawsuits. The state's cap is currently $250,000, set in 1975 by the Medical Injury Compensation Reform Act. If voted into law, Proposition 46 would raise the cap to around $1.1 million, matching inflation growth over the past 39 years and requiring the cap to grow with future inflation.

The law would also require doctors in California to undergo drug and alcohol testing. The results of the tests would be sent to the California Medical Board and positive test results would require disciplinary action from the board.

Proposition 46 is being pushed largely by trial lawyers and consumer advocates throughout California. Though the law would not raise California's attorney fee percentage cap, it would indirectly raise lawyer's fees through larger pain and suffering judgments.

According to the Los Angeles Times, proponents of the law argue that the current cap on pain and suffering damages hasn't prevented large malpractice awards inflated by un-capped medical expense and lost wage claims. What is has done, proponents argue, is make lawyers hesitant to take on medical malpractice cases in which patients' economic losses are low.

On the other side of the issue the medical community in California, including the California Medical Association, is opposing Proposition 46. Doctors are afraid that such a large jump in the pain and suffering judgment cap will cause medical malpractice insurance rates to skyrocket, possibly increasing medical costs and shrinking the number of patients that practices can take on.

Those fears are not unfounded, as rating agency A.M. Best warned this week. The agency surveyed California companies and determined that malpractice insurance rates and malpractice claims are both expected to rise significantly if Proposition 46 is passed.

The debate over Proposition 46 is heating up as election day draws near. Both sides of the debate are focusing on different aspects of the law. Proponents of the law are highlighting its drug testing provisions while opponents are framing the bill as a payday for lawyers. Consumer advocate Ralph Nader this week criticized former California Governor Jerry Brown for failing to support Proposition 46.