Prop 46 Seeks to Decrease Doctor and Patient Drug Abuse, Increase Medical Malpractice Awards in California. But at What Cost?

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Medical malpractice law in California could see amendments proposed by Proposition 46, which will be voted on next month. According to Independent Voter Network, there are three main amendments that Proposition 46 would make. As of now, patients in California can take legal action against health care providers for standards of care violations.

Proposition 46

Proposition 46 would require drug testing of doctors and a review of the state’s prescription database before doctors prescribe controlled substances. It would also raise the $250,000 limit on pain and suffering which is mandated by the current medical malpractice laws.

If Proposition 46 is passed, the cap on damages for pain and suffering in medical malpractice lawsuits would raise from the current $250,000 to $1.1 million and would be adjusted each year thereafter for inflation. Additionally, doctors would be required to take tests for drugs and alcohol, and would have to check with California’s database of prescription drugs before prescribing any controlled substances to patients.

The Opposition

According to KPBS, opponents of Prop. 46 argue that the already burdened Controlled Substance Utilization Review and Evaluation System (CURES) system would not be able to handle the volume of requests that the Proposition asks for, and that increasing the cap on pain and suffering in medical malpractice cases would be problematic.

Dr. Robert Wailes, a pain medicine specialist and former president of the San Diego County Medical Society, told KPBSthat the monetary consequences of raising that cap would mean higher health care costs for everyone; the increased cap would lead to higher costs for medical malpractice insurance, and that cost would be passed on to all patients. Dr. Wailes even goes so far as to suggest that this could force some doctors to close their doors.

The Support

According to KPBS, supporters disagree. Amitabh Chandra, a health economist at Harvard University, told KPBS that, “If you look at states that don’t have the cap compared to states that do have the cap, you don’t really see these big variations in malpractice insurance premiums.”

Additionally, supporters argue that requiring drug tests for all doctors and taking more measures to help stop substance abuse by doctors and patients alike would save lives. One study published in the Journal of Patient Safetyfound that around 400,000 Americans die as a result of medical mistakes each year. Some supporters of Prop. 46 argue that the main source of opposition comes from medical malpractice insurance companies that simply don’t want to pay out higher damage awards.


According to IVN, the Legislative Analyst’s Office (LAO), which is the California Legislature’s Nonpartisan Fiscal and Policy Advisor, says that all three parts of Prop. 46 have the potential to raise costs to state and local governments by tens of millions to hundreds of millions of dollars each year.

In 2013, medical expenses, lost wages, employer costs, property damages and related expenses altogether cost a little over $267 billion in the United States.

Additionally, the LAO believes that higher medical malpractice costs typically do get passed along to people who purchase health care services.

The decision is a complicated one because though the measures outlined in Prop. 46 may increase health care costs, they also have the potential to save lives. Whatever the ultimate decision is, citizens, health care providers, and medical malpractice insurers will find out in a few short weeks.

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