Ad Watch: Spots targeting malpractice awards cap mislead

The coalition opposing a fall initiative to mandate random drug and alcohol testing of doctors and quadruple the state’s decades-old $250,000 cap on medical malpractice awards is out with its first television and radio ads of the campaign.

The 30-second TV ad titled “ Risk” and the 1-minute radio spot called “Real Story” seek to define Proposition 46 as a vehicle for its trial attorney supporters to benefit financially at the expense of taxpayers and local governments.

Below is text of both ads followed by an analysis by Christopher Cadelago of The Sacramento Bee Capitol Bureau.

TV narrator: The real story behind Proposition 46? Start with the trial lawyers. They wrote and paid for Prop. 46. Why? Pretty simple. To make millions for more medical lawsuits and higher jury awards. So who pays? The rest of us. As malpractice insurance increases, the cost of health care will rise for all of us. That’s the real story. Those are the risks and why to vote no on Prop. 46.

Radio narrator: It’s that time again. Time for ballot initiatives claiming to be one thing. Until we get the real story – and find out what they’ll really cost us. Like Proposition 46. What’s the real story? Well, start with the trial lawyers. They wrote and paid for Prop. 46. And, just as you might’ve guessed – they did it for money. To make millions from more medical lawsuits and higher jury awards. So, who pays for it all? Well, as Prop. 46 increases doctors’ malpractice insurance ... the cost of health care will rise for the rest of us. In fact, California’s nonpartisan Legislative Analyst’s Office found Prop. 46 would increase state and local government health care costs “by hundreds of millions of dollars annually.” That’s the real story. Those are the risks. And why to vote No on Prop. 46.

Analysis: There’s no question the measure is primarily funded by trial attorneys. The measure’s official proponent is Bob Pack, a Danville man whose daughter, Alana, 7, and son, Troy, 10, were killed by a serial drunken driver heavily medicated on prescription drugs.

The initiative would increase to $1.1 million the amount of general damages victims can recover in medical negligence lawsuits. It retains the existing cap of 15 percent on attorneys’ fees. However, because the total award would grow, so could the amount collected by attorneys.

It’s unclear how raising the cap would affect the number of malpractice claims, according to the nonpartisan Legislative Analyst’s Office. It said the measure would likely encourage doctors to act in a way that reduces the number of claims.

But one of the proponents’ main arguments for raising the cap on awards is it’s so low lawyers won’t take some cases. Using their own logic, it’s fair to presume a higher cap would lead to more lawsuits.

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.

But the ad goes too far by unequivocally claiming that raising the cap will increase malpractice insurance costs and that the result would certainly be higher costs for consumers. Five health economists contacted by The Bee had mixed opinions on those questions.

The legislative analyst stated that state and local government costs would increase by several hundred million dollars annually. The ad omits the analyst’s view, however, that the increase would be offset “to some extent by savings” from provisions in the initiative for physician drug-testing and prescription drug monitoring.