CALIFORNIA'S PROPOSITION 46 - WHY YOU SHOULD VOTE YES

Medical Malpractice and Proposition 46 - What You Should Know

Next week, Californians will have the opportunity to vote on a ballot measure directed at the State's 38-year-old law which currently limits the general damages recoverable in a medical malpractice action to $250,000.00. Also contained within Proposition 46 are provisions aimed at drug testing doctors and imposing certain rules on the prescribing of controlled substances. While opponents have attacked the measure as a whole, the primary argument from the opposition is directed at the increase in the malpractice damages cap.

The Medical Injury Compensation Reform Act of 1976 and The Damages Cap

The Medical Injury Compensation Reform Act of 1976 (MICRA), was enacted by the California legislature as a way to protect doctors (actually their malpractice insurance carriers) from high damage awards. There can be no disputing the result of the initiative's passage: it worked. Since MICRA became the law in this State, malpractice awards for physical pain, mental suffering, loss of enjoyment of life, disfigurement, physical impairment, inconvenience, grief, anxiety, humiliation, and emotional distress have been limited to no more than $250,000.00.  This is true regardless of the age of the victim or whether the patient died as a result of the malpractice.  Simply stated, that limit no longer represents even a remotely fair amount of compensation to victims of medical neglect.  

When a child is blinded or loses a limb or a mother dies leaving behind a husband and her children, it is easy to see that compensation to the aggrieved family should be much higher than $250,000.00, particularly in today's economy.  If the absurdity of this antiquated law is not readily apparent on its face, MICRA's limitation on damages need only be compared to that of California's neighboring States.  Nevada's limit is $350,000.00, Arizona's is $500,000.00 and Oregon has determined that ANY limit is unconstitutional.  California should not have a substantially lower limit than neighboring States where the cost of living is much less.  It makes no sense that malpractice insurance carriers (who have spent MILLIONS opposing Proposition 46) are dictating what you and your family will recover should you fall victim to a negligent doctor.  If the unfairness of this antiquated law is still not clear, consider the following realities of medical malpractice lawsuits in general:

• Physicians prevail at trial the vast majority of the time (better than 90% in Orange County)
• Few attorneys will even take medical malpractice cases because of the expense of experts (who often charge thousands of dollars just to review a potential case)
• Locating qualified experts willing to testify on behalf of the victim is extremely difficult
• Defense experts will often bend the truth in order to defend a colleague

The civil justice system grossly mistreats victims of medical malpractice, and the quality of care has devolved over the years.  Medical errors are the third leading cause of death in this country, and it is time to turn this around.  VOTE YES ON PROPOSITION 46.