Prop. 46 proposes changes to medical malpractice law

SAN FRANCISCO (KGO) -- Proposition 46 allows for random drug testing of doctors and requires them to check a database before prescribing narcotics.

Doctors don't much like those provisions, but many consumer and substance abuse activists are in favor of this.

The real action in Prop 46 is the change to medical malpractice law. In California there is no cap on medical malpractice judgments for economic damages, for instance, needed medical care and lost wages. There is a cap of $250,000 on what attorneys and doctors call non-economic damages -- pain and suffering. That cap hasn't changed since the 1970s.

Bob Pack's children were killed by a prescription impaired driver in Danville.

He says that cap kept irresponsible doctors out of court.

"I was never able to bring the doctors who wrote all the prescriptions to any kind of justice or reprimand," Pack said.

His children were young, so there was little economic harm: No lost wages and since they died, no medical care to provide.

That left non-economic damages and with only a $250 million at stake.

Consumer Watchdog's Jamie Court said families have a hard time getting their day in court.

"When children die from medical negligence of any kind, the most you can get is $250,000. That is a law set 38 years ago by the legislature, never indexed to inflation, so when we have young people dying from overdosing, or doctors who are chronic over prescribers, their families cannot get access to attorneys they cannot get justice."

Dr. Lawrence Cheung is the president of the San Francisco Medical Society.

"The details are that his kids were run over by a person who was high on narcotics, so she is in jail. She is not leaving," he said. "So justice was serviced in that particular case. In my opinion, I don't see how prosecuting doctors would help him."

Cheung said if malpractice awards are allowed to go higher, it will take money away from actual medical care.

"If this were to pass, the malpractice premiums for all the doctors will increase and that is going to take money away from the operating budget to basically deliver care to their patients," Cheung said. "So that's a bad thing."

Both sides believe they have a shot at the election. Either way it is starting a conversation on patient safety that will continue beyond the election.