Vast Funding in CA Blocked Prop. 46 to Keep Malpractice Cap

A massive onslaught of funding contributed to the defeat of Proposition 46, a measure to lift the 1975 cap on some malpractice awards in California. Funding of nearly $60 million helped to finance opponents of the measure, which was rejected by two-thirds of voters on election day.

While the initiative was championed by lawyers and malpractice advocacy groups, it was opposed by many doctors’ organizations, including the California Medical Association. Though support or opposition initially broke down along political lines, with Democrats supporting and Republicans opposing the measure, other groups that typically align with the political left, such as Planned Parenthood and the ACLU ended up opposing Prop. 46.

On top of the funding issue, however, the measure also proved to be controversial because of additional provisions tagged to it, including drug testing for doctors.

Ballot initiative to change medical malpractice laws

Proposition 46 was proposed as part of the ongoing debate over and opposition to a cap on malpractice awards that was established in 1975. The cap set a $250,000 limits on awards related to less tangible damages such as pain and suffering. It was designed to combat so-called frivolous lawsuits, but has been opposed by attorneys and malpractice victims advocate groups which say that the cap makes certain kinds of lawsuits difficult, if not impossible, to carry out. The cap has also not been adjusted for inflation.

The ballot initiative would have changed medical malpractice laws by raising the cap on certain kinds of awards to $1.1 million. However, it also included other features, such as the requirement that a doctor would have to use a database as a reference before prescribing narcotics and that physicians would be required to take random drug tests in hospital to make sure they were not abusing drugs or alcohol.

Proposition 46 brought down

The initiative was introduced with the hope that a legislative deal could be struck without recourse to a costly campaign leading up to the voting, though no deal was ultimately struck. Instead, its multipronged nature allowed for vulnerabilities from various groups, some of whom might have supported it otherwise. For instance, the ACLU opposed the measure chiefly in connection to the drug testing of physicians rather than the lifting of the malpractice cap. As the chairman of the LA County Democratic Party, Eric Bauman, noted, “Proposition 46 suffered from the fact that its authors made it a Christmas tree.”

Despite the fact that California is firmly in the “blue state” category, the proposition, supported largely by Democratic organizations, has also gained many Democratic detractors. The initiative was defeated in every California county, regardless of political affinity. Recent lobbyists opposing the initiative have come from the Democratic camp as well as the Republican groups that formed the core of its opposition.

A major group of financial opponents of the bill consists of doctors and malpractice insurers. The California Medical Association in particular has spent $22 million lobbying in support of the cap since 1999.

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