Proposition 46: The threat to malpractice protection

Proposition 46 and the threat it poses to health care providers and the patients they serve was the topic of a timely lecture at CDA Presents in San Francisco. With the Nov. 4 election drawing closer, “MICRA: What Dentists Need to Know About the Threat to Malpractice Protection” outlined how Proposition 46 would raise the cap on noneconomic damages that would result in large payouts to trial lawyers, who are behind the ballot measure that also calls for physician drug testing and a statewide prescription database that jeopardizes patient privacy.

“This issue is very important to everyone in California due to its negative implications on the health care industry, including higher health care costs, increased litigation and liability, as well as access to care for patients,” said Dan Davidson, DMD, past CDA president.

Davidson offered background on the Medical Injury Compensation Reform Act that ensures injured patients receive fair compensation while stabilizing liability costs. A medical malpractice insurance crisis in the 1970s led to MICRA’s passage that includes a $250,000 cap on speculative noneconomic damage awards, which reduced the incentives by trial lawyers to file meritless lawsuits that drive up health care costs. Under MICRA, patients receive unlimited compensation for all economic damages, and wages, medical costs and punitive damages are all paid on an unlimited basis. It was also in response to this crisis that CDA ultimately created TDIC, The Dentists Insurance Company, to provide better liability insurance options for dentists.

“For years, the trial lawyer lobby in California has been trying to raise MICRA’s cap on noneconomic damages. They have repeatedly tried unsuccessfully to get MICRA overturned by the courts and to get the Legislature to pass an increase in the cap,” said Davidson. “They submitted the ballot measure with the goal of getting voters to approve it.”

Proposition 46 would raise the cap on noneconomic damages to $1.1 million, which would allow trial lawyers to triple the amount they make in legal fees in such cases. California’s former legislative analyst evaluated the increased costs across all sectors of the health care marketplace and found the measure would increase health care costs for consumers, taxpayers and the state by about $9.9 billion annually or about $1,000 more a year for a family of four. The Legislative Analyst’s Office estimates that lifting the MICRA cap would cost the state and local governments hundreds of millions of dollars annually.

“Dentists want to know how Proposition 46 would impact them if voters approve it,” said Davidson. “We know this measure would put enormous upward pressure on premiums and its significant impact warrants our campaign to defeat it.”

Proposition 46 also contains two other unrelated provisions aimed at distracting voters from the true intent of the measure — to raise the MICRA cap — and the trial lawyer proponents have admitted these provisions were written into the ballot measure just because they polled well with voters. One provision requires hospitals to conduct drug testing of physicians. The other forces doctors and pharmacists to use a massive statewide, government database filled with Californians’ personal medical prescription information. The database, CURES, lacks functionality to handle the new demands that would be placed on it and jeopardizes the privacy of patients’ personal prescription information and the ability of patients to get prescriptions in a timely manner.

“There are many problems with Proposition 46, and that’s why a coalition of more than 500 organizations, including CDA, health care providers, educators, law enforcement, businesses and labor unions are opposed to it,” said Davidson. “The ‘No on 46’ coalition, particularly CDA, has tens of thousands of members across the state that come into contact with a lot of voters, so we encourage members to share information about the measure’s negative impact with colleagues and patients — you can be a valuable messenger.”

The No on 46 campaign is providing materials, at no cost, such as brochures, posters, buttons and information cards that can be ordered at NoOn46.com.

For more on Proposition 46, visit the special section on cda.org.