The voters have spoke in California, and have given a resounding “no” to Proposition 46, a broad initiative which included raising caps in malpractice lawsuits and drug testing doctors.

California has had a $250,000 cap on damages for pain and suffering in medical malpractice cases since 1975. The Bureau of Labor has estimated that if the cap had been adjusted for inflation since the mid 1970’s, it would now be over $1.1 million.

The ballot initiative was started by grieving father, Bob Pack, whose son, aged 10 years, and daughter, aged seven years, were killed in 2003 by a driver under the influence of drugs. The driver’s car drove onto the sidewalk where the children were walking. Pack’s pregnant wife was also hit by the car and lost her unborn twins. The driver of the vehicle had been over-prescribed controlled substance medications by multiple clinicians.

The ballot measure pushed not only for raising the cap, but also for random drug and alcohol testing of physicians, and better reporting of drug or alcohol abuse by medical professionals.  No state currently requires random drug tests of physicians.


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The measure would also have mandated that health-care practitioners consult the state prescription drug history database prior to writing prescriptions for certain controlled substances for a patient for the first time.

The defeat of Proposition 46 came after a vast (close to $60 million) negative advertising campaign by insurance and physician groups, arguing that raising the malpractice caps would cause medical costs to soar in the state, and would drive clinicians from California.

Opponents also argued that an increase in lawsuits would result if the caps were raised, and physicians would end up practicing more “defensive medicine,” in order to protect themselves from suits. By comparison, supporters of the measure, primarily lawyer groups, raised only $8.5 million to promote the measure.

Despite Senator Barbara Boxer’s support, it was reported that every major newspaper in California, both right- and left-leaning, came out against the proposition.  When the votes were finally counted after Election Day, the “no” votes outnumbered the “yes” votes by a two-to-one margin.

Ann W. Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.