As November approaches, ballot initiative Proposition 46 has been receiving a lot of attention in California.

The ballot initiative contains three components:

  1. The random drug and alcohol testing for physicians.
  2. An increase in the cap on noneconomic damages. (The current cap of $250,000 has been in place since 1975. Advocates of Proposition 46 seek to raise the maximum to about $1.1 million.)
  3. The requiring of physicians to consult a statewide database before prescribing certain medications that have a high incidence of abuse.

Proponents of the measure, primarily trial attorneys and consumer advocates, have raised about $5 million to support the initiative. Opponents of the measure, including medical associations and malpractice insurers, have raised more than $54 million in hopes of defeating the proposition.

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Senator Barbara Boxer (D-CA) has come out strongly in support of Proposition 46 and has called the proposition a “modest compromise” in the battle between trial lawyers and medical providers over malpractice damages. Boxer appears in the first campaign advertisement promoting the ballot measure.

In response to Boxer’s television ad, the president of the California Medical Association, Dr. Richard Thorp, MD, commented  that “since this ad is entirely paid for by the trial attorney lobby, we aren’t surprised that it barely mentions what [Proposition 46] is really about, increasing medical malpractice lawsuits and attorney fees, while costing everyone else more money.”

After hearing arguments from both sides, initial support for Proposition 46 dwindled, according to a survey by the Los Angeles Times. The poll found that 61% of likely voters said they would support the proposition, while 29% opposed it (an additional 10% hadn’t decided). After hearing the main arguments for both sides, support for the measure dropped to 37%, while opposition rose to 50%.

Potential voters were polled about two provisions of the proposition: the cap on damages, and the mandatory drug and alcohol testing for physicians. Most respondents (68%) supported mandatory drug testing for physicians and only 25% opposed this measure. Respondents were less enthusiastic about the increased cap on damages, however:only 42% approved of an increased cap, whereas 47% opposed it.

Opponents of Proposition 46 are arguing that the measure would just line the pockets of trial attorneys and would ultimately increase health-care costs for patients. These arguments seem to be gaining traction with California’s voters, and support for Proposition 46 has dwindled in recent months.

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