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Battle Over Proposition 46 Focuses On Medical Malpractice Awards

Video by Nicholas Mcvicker


The fight over Proposition 46 is proving to be one of the most expensive in this fall’s election. Supporters say it will enhance patient safety, but critics call it a money grab by trial attorneys.

Battle Over Proposition 46 Focuses On Medical Malpractice Awards


Kenny Goldberg, KPBS Health Reporter


Backers of Proposition 46 on the November ballot say the measure is designed to improve patient safety in California.

Proposition 46: The Basics

Proposition 46 would raise the cap on medical malpractice awards from the current $250,000 to more than $1 million.

It would require drug and alcohol testing of doctors and mandate reporting to the California Medical Board. If a doctor is found to be impaired while on duty it would require the doctor to be disciplined.

It would require health care providers to consult the California controlled substances database, CURES, to ensure patients aren't doctor shopping for unneeded prescription drugs.

But opponents say Proposition 46 is really about putting more money into trial attorneys’ pockets.

While the measure has three components, the one that would lift the cap on awards for medical malpractice is garnering most of the attention.

Bill Mitchell's Story

One San Diegan who believes it is time to lift the cap on medical malpractice is Bill Mitchell.

Mitchell, a former San Diego Deputy Mayor, says he was the victim of medical malpractice in 1998.

He was diagnosed with glaucoma in his left eye, and underwent laser surgery to ease the pressure. The doctor sent him home with a list of four warning signs to look out for.

Two weeks later, Mitchell had pain in his left eye.

“So I ran to the mirror, and I noticed it was red, and a discharge, and I was losing my vision," Mitchell recalled.

These were the warning signs indicating a medical emergency, Mitchell had been warned. He immediately called his surgeon, but it wasn’t until later that afternoon that he actually got an appointment.

“When he took one look at me, he hurriedly took me over to the retina department, and they inserted 18 shots of antibiotic into my eyeball,” Mitchell said.

Photo caption: Former San Diego Deputy Mayor Bill Mitchell was left legally blind in his lef...

Former San Diego Deputy Mayor Bill Mitchell was left legally blind in his left eye, after a failed operation for glaucoma in 1998.

But Mitchell was left legally blind in his left eye. He went to 16 different attorneys to try to find someone to handle what he felt was a strong malpractice claim.

But, Mitchell said, because of California’s $250,000 cap on pain and suffering damages in malpractice suits, no one would take the case.

“When you start talking penny-ante money, where they’d get half of the $250,000, that means $125,000, that isn’t worth their time,” Mitchell said.

The California Legislature approved the cap on pain and suffering damages in 1975, in an attempt to lower the price of malpractice insurance.

Proponents say Proposition 46’s three elements would all enhance patient safety.

What Do Opponents Say?

But opponents disagree. They argue the CURES system can't handle the current number of requests, let alone an increased number of inquiries. And they maintain altering the cap on pain and suffering damages would be catastrophic.

That argument is the focus of many of the 'No on Prop. 46' television ads.

“The real story behind Proposition 46? Start with the trial lawyers," begins one of the advertisements. "They wrote and paid for Prop. 46. Why? Pretty simple. To make millions from medical lawsuits and higher jury awards.”

Photo credit: Nic McVicker

Dr. Robert Wailes, a pain specialist in Encinitas, thinks Proposition 46 would force some doctors to close their doors.

Dr. Robert Wailes is a specialist in pain medicine and former president of the San Diego County Medical Society. He’s a staunch opponent of Proposition 46. In fact, he’s put 'No on 46' signs all over his Encinitas office.

Dr. Wailes said lifting the cap will drive up the cost of malpractice insurance.

“That cost is going to be passed onto all of us. It increases the cost for health care,” he said.

Wailes explained that if malpractice insurance rates go up dramatically, some doctors will be forced to close their doors.

“So access to care will be a real issue because of this," Wailes said. "And we don’t want to decrease access to care at a time like this, when we’re trying to expand access to care."

But malpractice insurance rates are regulated in California. The state insurance commissioner has the authority to reject premium increases found to be excessive.

What Do Supporters Say?

Amitabh Chandra, a health economist at Harvard University, said changes to the cap wouldn't necessarily lead to higher overall healthcare costs.

"If you look at states that don’t have the cap compared to states that do have the cap, you don’t really see these big variations in malpractice insurance premiums," Chandra said. "Nor do you see variation in, say, the use of medical care.”

Consumer Watchdog's Carmen Balber says Prop 46 would enhance patient safety in California. She calls opponents' attacks scare tactics.

Carmen Balber, executive director of the nonprofit Consumer Watchdog, said opponents' doomsday forecasts are misleading. Her group is the driving force behind Proposition 46.

Baber said the 'No on 46' campaign is funded primarily by malpractice insurance companies. She said arguments against the measure are scare tactics.

“The last thing the insurance industry wants to do is play a fair game and say, 'Well, what we really don’t want to do is allow a few more families to court and hold dangerous doctors accountable,'" Balber said.

She explained that changing the nearly 40-year-old cap on pain and suffering awards is central to Proposition 46, but the other components are important too.

"Deterring substance abuse, whether it’s by physicians or patients, and deterring medical negligence, is going to save lives across the board,” she said.

A study in the Journal of Patient Safety estimates more than 400,000 Americans die each year as the result of medical mistakes.

Follow the Money

Collectively, opponents of Proposition 46 have raised more than $56 million to defeat the initiative.

In contrast, supporters have amassed about $7 million.

A Field Poll in early July showed 58 percent of likely voters were in favor of Proposition 46.

That support had dropped to 34 percent by early September.

Related: KPBS' full election coverage and voters guide

Proposition 46

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