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Scare Tactics Convince California Voters to Vote Against Lifting Damages Cap

Medical malpractice lawsuits play an extremely important role in our medical system. They fulfill two purposes: (1) they provide a way for those hurt by medical professionals to be made whole, and (2) they act to deter negligent and reckless conduct by medical professionals. So-called “tort-reform,” which often takes the form of damage-caps, thwarts both of those very important purposes. California voters had the opportunity this election day to roll back their state’s damage cap. However, they failed to do so, in part because of scare-tactics used by the insurance industry to muddy the issues.

California’s Proposition 46

The Los Angeles Times described the proposition clearly. Proposition 46 would have rolled back California’s damage-cap. It would not have eliminated the cap, but it would have at least raised the cap from $250,000 to roughly $1.1 million, in order to account for inflation. That $250,000 number was put in place in 1975. The proposition also would have required hospitals to randomly test their physicians for alcohol and drug use, and to test doctors after they made certain medical mistakes and after events that led to a patient’s death or serious disability. Finally, the measure also would have required doctors to check a state database when prescribing certain drugs to help prevent drug abuse by patients.

How Could Something So Seemingly Reasonable Not Pass?

Proposition 46 seems like something voter’s should favor. Providing a way to help doctors prevent drug abuse, discouraging doctors from practicing while impaired, and modifying a malpractice cap so it reflects inflation are by no means radical or offensive measures. But a report by 5KPIX, the San Francisco Bay Area’s CBS news affiliate, sheds some light on what happened. Apparently, the fight over Proposition 46 was the most expensive campaign in California this year, at a cost of over $60 million.

A large portion of that amount went toward what the report calls a “cascade of negative advertising financed by insurance and physician groups.” These ads claimed that the change would drastically increase medical costs and force doctors to flee the state. The problem, of course, is that none of this is true. As we have previously discussed on this blog, research has shown that tort reform measures do not meaningfully decrease the amount of defensive medicine practiced, which means that they do not meaningfully decrease medical costs. What meaningfully decreases costs associated with medical malpractice cases is training doctors and implementing policies that prevent medical malpractice from happening in the first place.

This is the problem with the tort-reform debate not just in California, but nationwide. On one side you have powerful insurance and medical lobbies that do a very effective job of convincing voters that it will cost them more money to allow patients to recover for their injuries. When in reality, those voters are much more likely to be victims of medical malpractice who are denied a full recovery than they are to be hurt by an increased cap.

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