Pubdate: Wed, 22 Oct 2014
Source: SF Weekly (CA)
Copyright: 2014 Village Voice Media
Author: Rachel Swan


Who's Behind It: The Consumer Attorneys of California, Consumer 
Watchdog, Sen. Barbara Boxer, and the California Teamsters Public 
Affairs Council.

Who Stands to Benefit: Attorneys and plaintiffs in medical negligence lawsuits.

Proposition 46, also known as the law that would pit trial lawyers 
against doctors, raises the damages cap on medical negligence 
lawsuits to just over $1 million. Initially proposed by Bob Pack, a 
bereaved father of two kids killed by an intoxicated driver, it's 
backed by a bevy of personal injury attorneys and by the taxpayer 
organization Consumer Watchdog. It's opposed, not surprisingly, by 
health care providers and insurance companies, including Kaiser 
Permanente and the Cooperative of American Physicians.

Christopher Dolan, the controversial lawyer who petitioned an Alameda 
County judge to declare brain-dead teenager Jahi McMath "alive 
again," has also poured $75,000 into what's become one of the most 
contested measures on the state ballot. Though Dolan didn't return 
calls seeking comment, his motivations aren't hard to decipher. As a 
trial attorney representing "people who have been physically and 
emotionally injured by the unlawful conduct of others," Dolan stands 
to reap huge financial rewards if Prop. 46 gets signed into law. It 
would allow any medical negligence suit to earn more than $1 million 
in "non-economic damages" - those ascribed to pain and suffering - 
which would translate into higher fees for the lawyer.

That's roughly four times the current $250,000 cap, which was set in 
1975. And the proposed law would mandate annual adjustments for 
inflation. Dolan's $75,000 investment could yield millions over the 
rest of his career.

If that were the measure's only provision, it would be fairly 
clear-cut. Trial lawyers have lined up behind Prop. 46 because it 
promises them a windfall; doctors and insurance companies oppose it, 
ostensibly, because the rising cost of lawsuits would get passed on 
to consumers. How you vote depends largely on whether you plan to 
fight a high-stakes medical lawsuit in the near future.

But Prop. 46 has two other provisions tucked into it that muddle its 
intentions. One is mandatory substance-abuse testing for doctors, a 
hotly debated topic that many deem a red herring. The other would 
require health care workers to consult a prescription history 
database before doling out certain controlled substances, such as 
OxyContin. That too makes for spirited discussion, while distracting 
voters from the proposition's core purpose.

According to Prop. 46's origin story, Pack lumped these three 
disparate proposals together to address all his frustrations with 
California's system for victim compensation. In 2003 his young son 
and daughter were struck by a driver who'd been abusing prescription 
drugs - a loss that devastated Pack, but also steered him into 
politics. He blamed the driver's doctors for enabling her drug habit, 
and ultimately sued them, but only recouped $250,000 for each of his 
kids' deaths. (Prop. 46 supporters claim that lawyers are often 
reluctant to take on pain and suffering cases because they offer 
little economic gain.) Deeply frustrated, Pack helped write a series 
of bills for the state Legislature. Prop. 46 is his most ambitious.

Bob Pack's story, like that of Jahi McMath - the Oakland teen who was 
declared brain dead after complications following a routine operation 
- - certainly elicits sympathy.

The question is whether sympathy translates into good policy. Most 
doctors demur, and they've spoken with money: The effort to defeat 
Prop. 46 had earned more than $57 million as of last week, roughly 
seven times the amount spent to pass it.
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MAP posted-by: Jay Bergstrom