The Prop. 46 Quadruple Whammy

  • Zakowski, Mark, MD
| Sep 22, 2014

Beware, Proposition 46 on the Nov. 4 ballot in California would have devastating consequences for healthcare in the state. It would: 

  • quadruple the cap on non-economic damages in medical lawsuits!
  • triple the fees trial lawyers make on these awards!
  • increase your malpractice insurance premiums by double or more!
  • drive doctors out of California!

Despite being buried behind two other non-related provisions, the real point of Prop. 46 is to increase the cap on non-economic damages under the Medical Injury Compensation Reform Act (MICRA). If California’s medical liability cap goes up, there will be more lawsuits and higher costs for everyone. California already has one of the highest state and local tax burdens, and doubling medical malpractice insurance rates will only make matters worse.

California was the first state to reform its medical liability tort system and many other states have followed our lead, including Texas. Under California’s current law, patients receive unlimited awards for gross negligence, unlimited awards for loss of future income and unlimited awards for past, present and future medical expenses.

According to the Texas Alliance for Patient Access, Texas enacted medical liability reforms in 2003 and has since added more than 16,000 in-state active physicians. Additionally, 31 rural Texas counties have added at least one obstetrician, including 14 counties that previously had none; 50 counties that did not have an emergency medicine physician now do; 19 counties that did not have a cardiologist now do.

States like Texas that have low tax burdens, affordable housing and relatively low medical liability insurance rates look appealing to doctors. This may be especially true for physicians finishing their residency training who are just starting their practice. Is this the future of health care in California? Doctors fleeing for more affordable states, leaving Californians with reduced access to care and higher health care costs? I certainly hope not.

The best way to predict what will happen in California if Prop. 46 passes is to look at states like Illinois and New York that have no limits on non-economic awards for medical malpractice lawsuits. The chart below uses data from the 2013 Medical Liability Monitor and compares annual professional liability costs in three states: 

  California (Los Angeles/Orange Counties) Illinois (Cook/Madison/ St. Clair Counties) New York(Nassau/Suffolk Counties)
OBGYN $ 71,248 $177,441 $184,802
General Surgery $ 54,400 $118,909 $133,593
Internal Medicine $ 15,415 $ 40,865 $ 35,733

​Medical malpractice insurance premiums in New York and Illinois are more than double the rates in California. Even more alarming, according to a 2010 study by The Center for Health Workforce Studies,19 counties are without obstetricians, 22 are without internal medicine specialists and 15 do not have surgical specialty doctors,  (“Annual New York Physician Workforce Profile,” The Center for Health Workforce Studies, 2010 Edition). According to a July 2012 story in The New York Times, several hospitals in New York City are partially or completely without liability insurance due to the high cost of liability premiums (“Troubled New York Hospitals Forgo Coverage for Malpractice,” The New York Times, July 15, 2012).

Prop. 46 was drafted by trial lawyers who want to profit from medical lawsuits with no concern for the impact on patients or the disruption to the delivery of health care. That’s why Prop. 46 is opposed by hundreds of diverse groups including doctors, nurses, community health clinics, dentists, educators, hospitals, family-planning organizations, local leaders, public safety officials, businesses, labor unions and many others.

You can learn more about Prop. 46 on the CSA website, and CSA members are encouraged to join our exclusive, new member group to privately discuss Prop. 46, and ask and answer questions.

What can you do to help defeat Prop. 46 on Nov. 4?

  1. Inform your patients and colleagues about this threat to our practices. Prop. 46 is bad for physicians, patients and all Californians – we need to get this message out and rally together to defeat this costly initiative. 
  2. Donate to CSA's GASPAC. The CSA needs your support to help fund our advocacy work, including the “No on 46” campaign. Please make a contribution today!
  3. Vote “NO” on Prop. 46 in November.

Just remember, Prop. 46 will quadruple payouts for non-economic damages in medical lawsuits and triple the amount lawyers can make. This is what happens when trial lawyers try to play doctor.

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