California Prop. 46: Raising the Medical Malpractice Award Ceiling

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Our California Election Watch 2014 series continues with a debate on Proposition 46. The initiative would raise the ceiling on awards in medical malpractice lawsuits and allow for random alcohol and drug testing of doctors, among other provisions. Prop. 46 pits trial lawyers, who support the measure, against doctors and insurers who oppose it. We'll talk with representatives from both sides.

Show Highlights: The Prop. 46 Debate, Issue by Issue

Raising the Ceiling on Damages for Pain and Suffering in Medical Malpractice Lawsuits

Yes on 46 Argument

"The law was set in 1975 and it capped non-economic damages, which is primarily cases where there's death and or severe pain and suffering; it capped the ability for a harmed patient to be able to sue for a maximum of $250,000 but almost 40 years later it's still $250,000. And we want to adjust that for inflation because $250,000 in today's money, for a harmed patient or death of a child, the victim's family can't even get an attorney to take the case."

"The No Campaign has pitted this as all about lawyers and that's just patentently false. Because in Prop. 46 the attorney rates are scaled down. There's a provision that caps attorney fees. For example, under Prop. 46, if a patient wins an award from a jury for $600,00 or more the attorney's fees are capped at 15 percent. Nobody's getting rich off that."

--Robert Pack, Yes on Prop. 46 Campaign

No on 46 Argument

"Just to clarify something - the cap on malpractice awards is not capped at $250,000. The only cap is on the non-economic portion of that award, which is the traditional pain and suffering piece. The actual awards since 1975 have outpaced inflation by two and a half percent.

Guests:

Robert Pack, representative for the Yes on Prop. 46 campaign

Richard Thorp, president of the California Medical Association and representative of the No on Prop. 46 campaign

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"Trial attorneys will in fact increase the amount of money that they make on a malpractice award by three to four times. That will increase increase the frequency of lawsuits and the intensity of lawsuits."

--Richard Thorp, No on Prop. 46 campaign

Random Drug and Alcohol Testing of Doctors

Yes on 46 Argument

" [Medical and health care workers] are the only profession left that holds people's lives in their hands that aren't tested. Take the example of pilots. [Airlines] proudly test their pilots and they do it successfully. And it's a terrific deterrent for pilots abusing drugs or alcohol. And it sends its message to the public -- 'If you travel on an airline in the United States, you're assured that our pilots are not abusing drugs or alcohol.'"

--Robert Pack, Yes on Prop. 46 Campaign

No on 46 Argument

"The costs of this ballot measure are significant and make it harder for community clinics to keep their doors open and serve their patients."

"The California Medical Board clarified that it does not have any empirical data on the number of physicians with substance abuse problems. The board says they don't now and have never collected this type of information."

"This ballot measure will only test hospital affliliated physicians. It doesn't test the number of other health care workers that might be out there."

--Richard Thorp, No on Prop. 46 campaign

Requiring Doctors to Check Database Before Prescribing Painkillers to First Time Patients

Yes on 46 Argument

"Fundamentally, this is the right way to go. Doctors need to be using the Controlled Substance Utilization Review and Evaluation System [CURES] database. 49 states have databases, 16 are electronic and three have mandatory requirements of checking the database. There's no reason California doctors shouldn't be using this database."

--Robert Pack, Yes on Prop. 46 Campaign

No on 46 Argument

"I think that the CURES database is a good idea, but it's been chronically underfunded. It does not work properly. It's difficult to get access to it."

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--Richard Thorp, No on Prop. 46 campaign

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