Attorneys and Doctors Square Off Over Prop. 46

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Two powerful professional groups — doctors and lawyers — are squaring off and spending more than $65 million on Proposition 46, one of six statewide measures on the Nov. 4 ballot.

Even the measure’s official title — “Drug and Alcohol Testing of Doctors. Medical Negligence Lawsuits. Initiative Statute” — is controversial, with critics asserting that Attorney General Kamala Harris, who assigns names to ballot measures, intentionally downplayed the initiative’s main goal.

“This is about the cap,” said Dr. Peter Bretan, a urologist who practices in Sonoma, Marin, Mendocino and Lake counties, speaking for the No on 46 campaign. “It was inevitable it might come to something like this.”

He was referring to the Medical Injury Compensation Reform Act, or MICRA, enacted by the Legislature in 1975. It set a $250,000 cap on the noneconomic damages, commonly known as pain and suffering, that may be awarded to a person injured by medical malpractice.

Trial lawyers, whose fees also were capped by the law, have chafed under it for 39 years and repeatedly failed to get it adjusted or eliminated. Proposition 46 would boost the cap to reflect inflation, effectively raising it to $1.1 million, with subsequent annual adjustments, according to the state’s Legislative Analyst. There is no limit on compensation to patients for economic damages, such as medical bills or loss of income.

A massive coalition of medical groups, including the state’s medical, dental, nurses and hospital associations, as well as teachers and business groups, labor unions, the Republican Party and the American Civil Liberties Union oppose the measure.

They have amassed a war chest of more than $57 million, including more than $10 million from the California Medical Association Physicians Issues Committee and $6 million in loans and donations from the Kaiser Foundation Health Plan, and are busy running media spots on the issue.

Supporters, headlined by California Sen. Barbara Boxer, consist of seven organizations, including the Consumer Attorneys of California, a group of nearly 3,000 attorneys formerly known as the California Trial Lawyers Association. The group’s political action committee contributed $1.1 million to the Yes on Proposition 46 campaign’s $8.5 million total, nearly all of it from trial lawyers and law firms.

Lifting the cap on noneconomic damages is a matter of “fairness and justice,” said Jack DeMeo, a Santa Rosa trial attorney. “We all make mistakes — engineers, lawyers, doctors,” he said. “The system is supposed to respond to that.”

But the 1975 law put doctors in a “special category,” said DeMeo, who estimates he has handled 100 medical malpractice lawsuits in 56 years as a trial attorney. It’s difficult to convince the public to change the law because doctors “are still held on a pedestal,” he said.

Consumer Watchdog, a nonprofit group backing Proposition 46, cites a study published in the Journal of Patient Safety that found as many as 440,000 hospital patients nationwide die each year from preventable medical malpractice, the equivalent of “a 747 crashing every 10 hours.” In other reports, the number of preventable malpractice deaths ranges from 98,000 to 180,000.

DeMeo contends the cap should have been indexed to account for inflation. If it had been, critics note, the current $250,000 limit would equate to a cap just over $1.1 million today.

“I’d get rid of the whole damn thing,” DeMeo said. “Nobody else has any limitations (on damage for malpractice).”

Skeptics may think of noneconomic damage awards as a mask for attorney paydays, but DeMeo said they cover discomfort, disfigurement and emotional pain. Even a $1 million award for pain and suffering “is not much for someone whose face has been mangled or has lost two legs,” he said.

State Sen. Noreen Evans, D-Santa Rosa, who is also an attorney, said the cap is unfair “to the most vulnerable of victims” — children, nonworking parents, retirees, the disabled — anyone without future wages, which are a “key metric for assessing economic damages in malpractice cases.”

California was the first state in the nation to cap noneconomic damages at a time when many physicians could not afford malpractice insurance, said Bretan, who specializes in urologic oncology. The $250,000 limit is enough to satisfy most claims, while it prevents “frivolous lawsuits,” he said.

At the seven-figure level, he said, “you have basically erased the cap,” he said.

Proposition 46 is also “an access issue,” Bretan said, asserting that it would drive up the cost of malpractice insurance, prompting physicians to retire, leave the state or go to work for hospitals. Rural areas like Sonoma, Lake and Mendocino counties would bear a disproportionate loss of physicians, he said.

In New York, a state with no cap on malpractice awards, insurance for specialists in obstetrics and gynecology costs $250,000 a year and 19 counties have no ob-gyns, Bretan said.

The No on 46 campaign points to the state Legislative Analyst’s assessment that it would cost state and local governments — which spend tens of billions of dollars annually on health care services — up to “several hundred million dollars” a year more.

Medical malpractice insurance costs would increase from 5 percent to 25 percent, but those costs are currently about 2 percent of total health care spending in California, the analyst said.

Consumer Attorneys of California cites statistics showing that malpractice insurance premiums in states with caps are 2.5 percent higher than in states without caps.

The lawyers also contend that insurance companies, not physicians, are the major beneficiaries of the cap. In 2011, less than 30 cents of every dollar paid in malpractice premiums in California went to injured patients, while malpractice insurers were posting “record surpluses,” the group said.

Critics of Proposition 46 say its authors included the provisions for random drug testing of doctors and mandatory use of a drug history database in prescribing controlled substances as “sweeteners” to gain voter approval.

DeMeo said he considers all three of the proposition’s measures important but the American Civil Liberties Union of Northern California contends that they violate the “single subject rule” for initiatives contained in the state Constitution.

“Drug testing has nothing to do with changing MICRA,” said Natasha Minsker, associate director for the regional ACLU. What she called “random suspicionless drug testing” also violates constitutional privacy rights, she said.

The ACLU doesn’t comment on whether it is contemplating legal action, Minsker said, noting that lawyers often wait until after a ballot measure has been approved to challenge it in court.

Evans said that other professions, including airline pilots, truck drivers and train engineers, are subject to random testing for substance abuse. “Why not doctors, who literally hold our lives in their hands?” she said in an op-ed page commentary this month in The Press Democrat.

Barry Keene, a former Santa Rosa-area school board member who served 20 years in the state Legislature, sponsored the 1975 bill that set the $250,000 cap on malpractice damages.

Trial lawyers, at the time, opposed the idea of inserting an inflation escalator in order to “worsen” the law and “further diminish its public profile,” Keene said in an email from Seattle, where he lives.

Keene said he had hoped that debate over Proposition 46 would produce a compromise on raising the cap, “but it appears that is not the case.”

“Bottom line is that were I still a California voter, with some reluctance, I would have to vote for the measure,” he said.

You can reach Staff Writer Guy Kovner at 521-5457 or [email protected].

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