Proposition 46 will be on the California ballot this November. Prop 46 contains three provisions: (1) drug testing of physicians, (2) mandatory use of CURES before prescribing scheduled drugs, and (3) the measure’s primary intent, which is to increase the cap on the “pain and suffering” component of malpractice suits. The first two provisions poll well with voters and are on the initiative as “sweeteners” for the major provision, which is the increase in the cap on non-economic damages from $250,000 to $1.1 million with future cost of living increases. The proposition has been financially supported almost entirely by trial attorneys.
California has had a cap on non-economic damages in malpractice suits since 1975. The Medical Injury Compensation Reform Act (MICRA) was signed by Governor Jerry Brown in 1975. At that time physicians in northern California were facing a 380 percent increase in malpractice premiums. MICRA contained several provisions: the $250,000 cap on non-economic damages, disclosure of collateral sources of payment, limits on attorney’s fees, periodic payments for future damages, a 90-day warning of an impending claim to offer a chance to settle out of court, and strengthening the physician discipline system in California. There have been many attempts by trial attorneys to overturn MICRA since 1975, but this is the first to use the initiative process. MICRA has helped stabilize malpractice insurance rates in California, has been a model for reform in several states (Florida, Colorado, Texas, and many others), and has been seen as a model for federal tort reform.
Proposition 46 would cost Californians $1,000 per family in increased health care costs. All specialties would be affected, but high risk fields, such as ob/gyn and surgery, will see the largest effects. It may drive specialists in high-risk fields out of practice in our state. It will increase costs for all health care entities including safety net providers, community clinics, and rural medical facilities.
The CURES component has its own problems. CURES does not have sufficient protections for patient privacy and may force providers to withhold treatment in order not to violate the law. The CURES database is a very useful tool, but it needs to be updated and better funded.
There is a broad coalition of organizations in the No on 46 camp. They range from medical, dental, and hospital associations to teachers, school board associations, a long list of labor unions, chambers of commerce, and a large number of community clinic providers. Ultimately, though, it will be up to the voters to decide this measure. This is our opportunity to inform our colleagues, friends, and patients about what this would mean for California. The message is simple: it will raise health care costs for all Californians, decrease access to needed specialists in our state, and the financial benefit of Prop 46 will go primarily to trial attorneys’ pocketbooks.
Jim Cotter, MD