Proposition 46: A Threat to the Practice of Medicine

  • Hertzberg, Linda, MD, FASA
| Sep 08, 2014

I am very concerned about Proposition 46, the challenge to MICRA on the November ballot, and you should be too.

When I moved to California for medical school and residency training, I was secure in the knowledge that MICRA’s provisions protect physicians from frivolous lawsuits, especially in a high-acuity, high-profile specialty such as anesthesiology. If Prop. 46 passes in November, that will change radically. Prop. 46 will lead to more malpractice lawsuits, increased health care costs, and reduced patient access to health care. 

Prior to the passage of MICRA, California physicians were embroiled in a malpractice insurance crisis. Driven by frivolous lawsuits and excessive jury awards, medical liability insurers levied massive insurance premium increases and canceled insurance policies for many physicians across the state. 

MICRA allows patients with justifiable medical malpractice claims to receive the following forms of compensation:

  • Unlimited economic damages for past and future medical costs.
  • Unlimited damages for lost wages, lifetime earning potential or any other economic losses.
  • Unlimited punitive damages.
  • Up to $250,000 for non-economic damages. Unlike economic damages, non-economic damages are inherently subjective and often difficult to verify and measure. MICRA’s $250,000 ceiling on non-economic damages has proved effective in reducing and stabilizing medical liability insurance costs, which in turn has limited the rate of growth in health care costs and increased access to health care for all Californians.

Proposition 46 has an anti-MICRA provision that would quadruple the non-economic damages cap on MICRA from $250,000 to $1.1 million and triple lawyers’ legal fees in health care lawsuits. The California Medical Association reports that 100 percent of contributions to pay for signature-gathering to place this on the ballot came from trial lawyers and groups politically aligned with trial lawyers. If Prop. 46 passes, trial lawyers will drastically increase their legal fees on medical malpractice lawsuits, while health care providers will face much higher medical liability insurance rates.

The measure also contains two “sweetener provisions” that would require physician drug testing and mandate the use of the CURES prescription drug database. These items were intentionally included in an attempt to mislead voters into supporting the proposition. Proponents of the initiative even acknowledged to the Los Angeles Times that physician drug testing was included as a “sweetener” because it polled well, not because it was good public policy.

The provision to establish mandatory physician drug and alcohol testing is impractical and ill designed. It calls for physicians to be drug tested at random, and after “adverse events.” Prop. 46 requires physicians to submit a drug and alcohol test within 12 hours of the report (even if the report is made days later) of an “adverse event.” If you do not appear and provide a sample for drug testing, you will face suspension (legal assumption of guilt).


In addition, Prop. 46 forces doctors and pharmacists to use CURES, a massive statewide database filled with Californians’ personal medical prescription information. This is a mandate that government will find impossible to implement, in a database with no increased security standards to protect your patients’ prescription information from hacking and theft.       

In Fresno, where I live, we have a shortage of physicians in both primary and specialty care. The Fresno area is not alone in this regard. Many physicians have experienced increasing overhead and decreasing payments for services in the past several years. An increase in malpractice risk, depositions, and premiums would hinder our ability to successfully retain local physicians and recruit physicians from other areas or out-of-state. Some physicians I am acquainted with are thinking about retiring or leaving California should Prop. 46 pass.

You can learn more about Prop. 46 by reviewing the extensive material we have posted about it on the CSA website.  In addition, CSA members are welcome and encouraged to join our exclusive, new member group to privately discuss Prop. 46, and ask and answer questions.

Three other items are important here.

  1. Inform your patients and colleagues about this threat to our practices. Do all you can to. If we stick together and be proactive, we have a good chance to defeat Prop. 46. Apathy and sitting on the sidelines are not a good long-term strategy here.
  2. Donate to CSA's GASPAC. Every campaign needs money for its message, and the “No on 46” campaign is no exception. We are fortunate that ASAPAC has agreed to match GASPAC donations to the “No on 46” campaign up to $20,000. I urge you to donate to GASPAC immediately to help us get these matching funds.
  3. Vote “NO” on Prop. 46 in November.

If there was ever a time we need each and every CSA member to step up, it is most certainly now.

Richard Winters, MD, an emergency physician practicing in Fresno, contributed to this article.

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