Voters Reject Prop. 46, Current Limit on Compensation for Pain and Suffering Remains

November 7, 2014 | By Greene Broillet & Wheeler

In an earlier post, we referenced the distinct possibility that making it harder for injured patients to bring medical malpractice claims against negligent doctors or other health care providers may not do much in terms of lowering healthcare costs (tort reform, schmort reform).

The traditional way of thinking – from the perspective of one who supports tort reform – is that medical malpractice claims drive up the cost of healthcare because doctors resort to the practice of defensive medicine, i.e. ordering more tests and treatment than necessary in order to prevent a lawsuit.

But a recent Rand study indicated that tort reform might not lower healthcare costs after all.

The recent effort to fight back against tort reform advocates and make the system fairer for injured patients was Proposition 46, which, had California voters passed it, would have accomplished three things:

• Raised the limit on compensation for pain and suffering associated with medical malpractice from $250,000 to $1.1 million, bring it in line with inflation;
• Required physicians to cross-reference a state database to ensure that patients weren’t being over-prescribed painkillers and other prescription drugs; and
• Required substance abuse testing on physicians suspected of being under the influence.

But Prop 46 did not pass.

Medical Injury Compensation Reform Act

State lawmakers originally enacted MICRA in 1975. It was then that the $250,000 damages cap on pain and suffering was put into place. There have been efforts to raise the cap since then – most recently this week in the November elections – but they have failed so far. Unlike other states with limits on damages, California’s law does not adjust for inflation.<ed