Proposition 46

proposition 46
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Even if you don’t live in California, it’s important for you to know about a proposition on the upcoming California ballot that may also be coming to a state near you. Proposition 46 is primarily about raising the cap on non-economic damages, “pain and suffering,” in a malpractice lawsuit against your doctor. The maximum that can be paid out in non-economic damages is currently set at $250,000. THAT DOESN’T MEAN YOU ONLY RECEIVE $250,000 IF YOU WIN A MALPRACTICE SUIT AGAINST YOUR DOCTOR!


In many of the ads you see on TV, for or against proposition 46, I think they’ve done a very poor job of explaining what the current cap includes and what it doesn’t. Even as a doctor watching the ads, it looks to me like even if your doctor exhibits gross incompetence that leads to the injury of your loved one, you only get $250,000. That’s not the entire story. Sure the cap is $250,000 for “pain and suffering” (non-economic damages) but what about if they need to be cared for in a nursing home or receive any type of long term care? Those types of needs are considered economic damages and there is no cap in place for those. Meaning that you will receive the funds necessary to cover those financial burdens. And for your grief, you will also receive $250,000.


I think the most frustrating ad I’ve seen is the endorsement by California’s junior Senator, Barbara Boxer. She claims that Proposition 46 will help protect you against doctors’ malpractice. What she fails to mention is that she receives a great deal of money (contributions) from the legal establishment. Personal injury attorneys stand to gain the most from the passage of Proposition 46, not the victim’s family. Just as I disclosed my bias above as a doctor, shouldn’t a longstanding elected official like Barbara Boxer disclose that she’s supporting a proposition that will increase the income of her husband and other attorneys that have supported her senatorial campaigns? Don’t believe me, check out this table showing her biggest industry supporters!


proposition 46
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Lastly, I want to mention a “sweetener” that was included in the proposition. There is an unrelated measure in the proposition that says doctors should be drug tested. Who doesn’t agree with that, aside from the ACLU?! Just as we drug test our pilots, I think it’s reasonable to drug test our doctors. But that is a totally separate issue than the non-economic damages cap. The authors of the proposition purposely included that element into the proposition so that voters would see the drug testing issue and say, “of course doctors should be drug tested,” and vote for the whole proposition even though they may not have understood the issues regarding the cap. Does that qualify as an example of bait and switch or just plain dishonesty?



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