By Y. Peter Kang, LAW 360

September 27, 2019…

Law360 (September 27, 2019, 9:18 PM EDT) -- A consumer advocacy group has launched a ballot initiative that would significantly raise California’s cap on pain-and-suffering damages in medical malpractice cases, five years after a similar proposal was shot down by voters.

Nonprofit group Consumer Watchdog said Thursday that the proposal aims to raise the state’s cap on noneconomic damages such as pain and suffering, which was set at $250,000 when California enacted the Medical Injury Compensation Reform Act in 1975 but has never been adjusted for inflation.

The group said that should the Fairness for Injured Patients Act make it on the November 2020 ballot and be approved by voters, the cap would be lifted to approximately $1.23 million. In addition, the proposal has a provision that would allow judges and juries to decide whether to waive the cap in cases involving catastrophic injuries or death.

The new ballot initiative was launched five years after 67% of California voters rejected Proposition 46, a similar measure that would have raised the non-economic damages cap to $1 million. However, Prop 46 contained a provision that would have subjected doctors to drug and alcohol testing.

Consumer Watchdog and other supporters will need to obtain approximately 623,000 signatures to make it on the ballot.

The group said fundraising efforts will be spearheaded by husband-and-wife attorney team Nick and Courtney Rowley of personal injury plaintiffs firm Carpenter Zuckerman & Rowley. During his first marriage, Nick Rowley lost a child due to medical malpractice, according to Consumer Watchdog.

“This unjust law was passed when John Lennon was still alive, President Ford was president and the Vietnam war was just ending,” Nick Rowley said in a statement. “The only thing that has happened in 45 years is thousands of patients and families have experienced horrific injustice while insurance companies have made countless billions. Now it’s time for voters to be the jury and do what politicians have failed to do, adjust and update a horribly unjust law.”

The Consumer Attorneys of California said Thursday that while it believes the state’s medical malpractice laws are “unjust and unfair,” it has not yet decided whether to support the ballot initiative.

“We believe the best place to address this issue is in the state Legislature, and our hope is that state elected leaders will embrace the need to correct an antiquated law that has undercut patient safety and basic human rights for too many decades,” CAOC President Mike Arias of Arias Sanguinetti Wang & Torrijos LLP said in a statement.

A spokeswoman for the California Chamber of Commerce declined to comment, saying it is still reviewing the language of the proposal. A representative for the California Medical Association did not immediately respond to requests for comment.

--Editing by Abbie Sarfo.