Community Columns

Prop. 46 cloaks money grab with promise of reform

From the poet Virgil comes the story of Trojan warriors, happy to receive a large wooden horse as a gift from the departing Greeks – unaware that inside waited Greek soldiers, who would exit in the night, open the gates and bring the downfall of Troy.

A “Trojan horse,” in modern usage, describes any effort to deceive, mislead or fool an enemy, competitor or even a friend by offering what appears to be a good thing, but has something harmful and quite different hidden within.

Which brings us to Proposition 46, a Trojan horse if there ever was one. It is a two-part affair, one part a sugar-coated exterior promising all kinds of good things, but buried inside is a self-serving poison pill guaranteeing a boost in lawyer fees, increased state taxes and medical expense. Not surprisingly, the proposition was written and financed by trial lawyer lobby groups.

First, some history: In 1975, alarmed by rising malpractice insurance costs, California’s Legislature passed a law limiting medical malpractice awards for “pain suffering” to $250,000. Until that law passed, the awards often ran into the tens of millions. In the following years, the cost of malpractice insurance for California physicians dropped significantly and is now among the nation’s lowest.

This sequence was repeated more recently in Texas, where rates dropped as much 30 percent after the reforms were passed and are today less than they were in 2001.

The hidden danger in California’s Proposition 46 seeks to quadruple the “pain and suffering” damages limit to $1.1 million, with lawyers taking up to 40 percent.

Malpractice premiums are influenced by many factors, varying greatly between states and even between counties in the same state. While they do not always correlate perfectly with or without a cap, the general consensus is that higher malpractice awards cause higher malpractice premiums, more lawsuits and increased medical costs. For these reasons, the Legislative Analyst’s Office has put the annual cost of Proposition 46 from “the low tens of millions to the hundreds of millions of dollars” – much of it to be paid by taxpayers.

And the sugar coating? Several measures are intended to protect the public from impaired or grossly negligent physicians, including mandatory routine drug testing. It’s a worthy goal on the surface, but with technical, legal and financial issues that have never been debated by the public, government or professionals. Why not nurses, dentists and other medical personnel? What will the cost be and who pays for it? What of the security of patient medical records? And of individual rights of physicians?

Why the joining of two unrelated issues? Easy, the legal lobby understood the public would see the poison pill alone for what it is – a guaranteed pay raise for trial lawyers, and would reject it out of hand.

Measures of this importance deserve careful and public debate, not a quick, self-serving effort written by lawyers with a hidden agenda.

Supported by some, opposed by many – including two unusual bed partners, the Republican party and the ACLU – Proposition 46 deserves a solid no from voters in November. As for raising the award limit, an ancient warning – “Beware of Greeks bearing gifts” – and lawyers, too.