Prop. 46 aims to increase malpractice awards, test doctors

Doctors, malpractice suits, drug testing and prescriptions.
Doctors, malpractice suits, drug testing and prescriptions. Bigstock

Proposition 46 is the latest salvo in a decades-long fight between medical doctors and trial lawyers.

The three-pronged initiative would increase the limit on damages for pain and suffering, require random drug and alcohol testing of doctors and mandate that health professionals consult a statewide drug database before issuing certain medications to patients to prevent “doctor shopping.”

Past efforts to lift the $250,000 cap dating back to 1975 have all failed, including unsuccessful negotiations earlier this year to set the new limit at $500,000.

Opponents, led by doctors, unions and insurers, had raised more than $57 million through Wednesday, dwarfing proponents’ $9 million raised in the bitterly fought battle over the measure.

Ads against the measure criticize trial-attorney supporters as solely looking out for their own interests. They also have questioned the security of the drug database and dismissed the drug testing provisions as a cynical ploy for votes.

Supporters, meanwhile, have run ads featuring a Tennessee doctor who advocates drug testing and the father of two children killed by a driver impaired by painkillers obtained from multiple doctors. Another portrays a doctor drinking at a bar.

What it does

▪ Raises from $250,000 to $1.1 million the cap on the amount of damages for pain and suffering that can be awarded in a medical malpractice lawsuit. The cap would be indexed to inflation in subsequent years.

▪ Requires hospitals to administer random drug and alcohol tests to doctors affiliated with the facility.

▪ Requires a drug and alcohol test if a doctor saw a patient within 24 hours of an “adverse event” or if a doctor is reported for possible use of drugs or alcohol while on duty or failing to follow an appropriate standard of care.

▪ Requires the state medical board to take specific disciplinary action, including license suspension, if a doctor is found to have been using drugs or alcohol on duty or refuses to follow the drug and alcohol testing protocol.

▪ Requires doctors to report to the board any doctor believed to be impaired with drugs or alcohol while on duty.

▪ Requires health professionals, including pharmacists, to check the statewide drug database before dispensing potentially abusive drugs to a patient for the first time to determine if the patient already has an active prescription.

What it costs

▪ According to the Legislative Analyst’s Office, raising the malpractice cap would likely increase total health care spending by 0.1 percent to 0.5 percent. For state and local government, it said the increase could amount to “several hundred million dollars annually.”

▪ On a net basis, the office also says the drug testing and database checking provisions would amount to a “highly uncertain, but potentially significant” savings for state and local governments.

Who’s for it?

▪ Consumer Watchdog

▪ Consumer Attorneys of California

▪ Congress of California Seniors

▪ U.S. Sen. Barbara Boxer

▪ Insurance Commissioner Dave Jones

▪ California Teamsters Public Affairs Council

Who’s against it?

▪ California Medical Association

▪ California League of Cities

▪ California Teachers Association

▪ Service Employees International Union (SEIU) California

▪ American Civil Liberties Union of California

▪ California Chamber of Commerce

Major contributors

For – Supporters have raised $9.2 million and spent $7.4 million (through Oct. 18)

▪ Consumer Attorneys of California: $2.2 million

▪ Robinson Calcagnie Robinson Shapiro Davis Inc.: $250,000

▪ Cotchett, Pitre & McCarthy LLP: $150,000

▪ Giradi/Keese: $150,000

▪ Panish, Shea & Boyle LLP: $125,000

▪ Consumer Watchdog: $440,000 in committee formed to support both Proposition 46 and 45

Against – Opponents have raised $57.6 million and spent $54.2 million (through Oct. 18)

▪ Cooperative of American Physicians Independent Expenditures Committee: $10.2 million

▪ Norcal Mutual Insurance Committee: $10 million

▪ The Doctors Company: $10 million

▪ California Medical Association: $5.3 million

▪ Kaiser Foundation Health Plan:

$5 million

▪ Medical Insurance Exchange of California: $5 million

How true are competing claims?


▪ The measure will deter medical negligence and save lives by holding doctors more accountable for their actions.

Supporters of the measure have said it’s common sense that Proposition 46 would save lives, but they have provided no hard evidence.

▪ Experts estimate nearly one in five health professionals suffers from substance abuse during their lifetimes.

The oft-cited figure comes from a March 2000 newsletter from the California Medical Board. The newsletter stated experts in the substance abuse field who work with health care professionals “estimate the lifetime risk for developing a problem of abuse among health professionals may be as high as 18 percent,” close to the 1 in 5 number cited by proponents. The experts believe the percentage with substance-related disorders at any given time is closer to 1 percent to 2 percent.

▪ Despite inflation, the malpractice cap has not been adjusted since it was created in 1975 and is too low to compensate victims of medical negligence for their noneconomic damages – pain and suffering.

It’s true that the cap has not increased in nearly 40 years. Whether the cap is too low is subject to debate. Lost wages, medical costs and punitive damages are not capped like pain and suffering. According to a study that used statistics from malpractice insurers – the primary opponents of the measure – the average total malpractice award in California has far outpaced inflation since 1976.


▪ The drug testing provision was included to distract voters from the main intent: increasing the malpractice cap for lawyers who stand to benefit through higher legal fees.

Even the proponents of the initiative freely admit that the drug testing provision was included as an inducement. The measure retains the existing cap of 15 percent on attorneys’ fees, but the amount collected by attorneys would likely grow because the total awards would grow.

▪ The malpractice cap increase will increase doctors’ insurance premiums, which ultimately will be passed on to consumers through higher health insurance rates.

The legislative analyst concluded that raising the cap would likely increase overall health care spending by driving up direct medical malpractice costs and changing the amount and types of health care services provided. Five health economists contacted by The Bee had mixed opinions on whether raising the cap would ultimately lead to higher costs for consumers.

▪ The measure requires doctors to consult a vulnerable government database containing personal prescription drug history, open to law enforcement, hackers, identity thieves or accidents.

The database, called the Controlled Substance Utilization Review and Evaluation System, has been around for years, and a more user-friendly version came out in 2009. Pharmacies for certain drugs are already required to provide information such as a patient name, address and birth date to the Department of Justice. The CURES gets about 4 million prescription inputs a month, and nothing in the initiative would change that. It simply requires that health professionals check the existing system.

Call Christopher Cadelago, Bee Capitol Bureau, (916) 326-5538. Follow him on Twitter @ccadelago.