Conflicted Citizen

DEAR READERS: Do you have a legal question on your mind? If so, please email me. Your name will remain confidential. Although every inquiry may not be published, we will publish as many as possible. Finally, this Q & A Legal Column is intended as a community service to discuss general legal principles and does not create an attorney-client relationship.

Dear Debra:  What is your read on Proposition 46? The commercials say that it is backed by trial lawyers, that we’ll see more medical malpractice lawsuits, and that costs will rise.  What do you think?

Signed:  Conflicted Citizen
Dear CC:

First, I think it is important to be informed about all the upcoming ballot measures, no matter what your political leanings or opinions are. I’m a bit partial to websites like The League of Women Voters which do a grand job of outlining the key issues in an objective fashion. Check out

Proposition 46 actually addresses three elements, all of which are geared toward the honorable medical profession: 1) It raises the ceiling on pain and suffering awards in medical malpractice cases from $250,000 to approximately $1.1 million; 2) It requires random alcohol and drug testing for medical doctors; and 3) It requires doctors to check an existing medical index system before they prescribe certain narcotic drugs to minimize “pill mills” and “doctor shopping”.

Allow me to walk you through Proposition 46 by using an example, which may not be too far from the truth, as it can and has happened. Let’s say that your father is a diabetic, and that due to his condition, he needs to have his right foot amputated. He goes to the hospital for his scheduled surgery. His surgeon, who has weathered two divorces, a dying parent, and near financial ruin, happens to have a prescription drug habit. During the surgery, the doctor, partially impaired, amputates the wrong foot of your father. Your family, and particularly your father, is rightfully upset. In essence, he is now a double-amputee, as he will need to go back and get the diseased foot amputated. He will probably choose a different surgeon. He sues his first surgeon for medical malpractice.

Currently, under California law, ever since 1975, there is a “cap” on the pain and suffering award. So, no matter what your father’s pain and suffering is, he may only collect up to $250,000 for his pain and suffering, also called “non-economic damages”. Proposition 46 in essence modernizes a 39-year old law. If Prop 46 passes, the pain and suffering cap will be adjusted for inflation, estimated to be a $1.1 million cap.

The second element under Prop 46 requires random drug testing for doctors, making California the first state in the nation to require drug testing for doctors. Is there a problem with impaired doctors? I am not sure. I have read some statistics that approximately 2% of doctors have a propensity toward addictions, particularly prescription drugs which are readily accessible. The California Medical Board, a consumer/patient protection arm, estimates that one out of five doctors may abuse drugs or alcohol. Prop 46 would require that the hospitals bear the costs of randomly testing their doctors. Advocates of Prop 46 argue that pilots and truck drivers are required to undergo random drug testing, so why shouldn’t doctors. Opponents argue invasion of the doctors’ privacy.

The third element of Prop 46 addresses an existing Medical Index System, called the CURES (Controlled- Substance Utilization Review and Evaluation System). CURES already exists and is a good idea as it tracks certain narcotic prescriptions that have a tendency to be abused by patients, like Vicodin or OxyContin. If Prop 46 passes, the prescribing doctor will have to consult CURES before writing certain scripts.

Whether you vote “Yes” or “No”, Prop 46 is an expensive campaign. It is estimated that the “No” camp has spent $58 million to defeat Prop 46, with the heaviest donors being the insurance companies and hospitals. The “Yes” camp has spent only $6 million, primarily backed by patient/consumer advocates and trial lawyers. Lots of money being spent; lots of “spin” on the TV ads. Get informed. Vote.

Debra A. Newby is a resident of Monte Rio and has practiced law for 32 years. She is a member of the California, Texas and Sonoma County Bar Associations and currently maintains an active law office in Santa Rosa which emphasizes personal injury law (bicycle/motorcycle/motor vehicle accidents, dog bites, trip and falls, etc.) and expungements (clearing criminal records). Debra can be reached via email (, phone (707-526-7200), or fax (526-7202).

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