Proposition 46 in California highlights barriers to justice around our county, although luckily not as much in Washington

Repost from The CMG Voice.

Posted Monday, October 6, 2014 by Tyler Goldberg-Hoss.

Soon Californians will vote on whether to change their state’s medical malpractice law in a key way – increasing the cap on verdicts for so called “non-economic” damages. Analyzing the ballot measure’s effects is useful when understanding what the laws are in Washington.

Currently in California, as it has been for years, there is a cap on the amount of damages awarded to a patient victim. If a jury finds that a health care provider was negligent and caused harm, the victim can be compensated for all of his or her economic damages – that is, lost past and future wages, medical expenses incurred and with reasonable probability to be incurred in the future, and the like. However, a victim can only recover $250,000 for non-economic damages – pain, suffering, loss of enjoyment of life, disfigurement, disability, and so on.

Yes on 46

Now, Proposition 46 includes a provision to increase that cap on non-economic damages to account for inflation. If passed, the cap would be $1.1 million. An interesting read on the issue and also on the other provisions in the bill (related to drug testing doctors) is found here:

California Proposition 46, Medical Malpractice Lawsuits Cap and Drug Testing of Doctors (2014)

In Washington, victims of medical malpractice are fortunate. There are no caps on damages that may be allowed for injuries due to the negligence of health care providers. So a jury is allowed to decide for themselves what the appropriate measure of damages is to compensate an injured victim.

This highlights the fact that across the nation, each state has different laws that apply to lawsuits involving medical malpractice. Some states, such as California, place caps on the amount of damages that may be allowed by a jury. Other states have different time limits for how long a victim has to file a lawsuit before he or she is barred from doing so (the statute of limitations). Others restrict the type of expert witness needed to support a claim for malpractice (must practice in the state, or must have the same training as the defendant doctor).

Some states force victims to file “Certificates of Merit” along with their complaint for damages, forcing plaintiffs to prove expert support for their claim prior to filing a lawsuit. Others have a notice requirement, forcing victims to give potential defendants notice for some period of time prior to filing a lawsuit. Still others have mandatory screening panels claimants must face prior to a jury trial.

In Washington, some of the above requirements existed at one time. However, over the course of the last few years, many of those (including the Certificate of Merit and Notice requirements) have been struck down as unconstitutional. Patient victims here have the Plaintiff Trial Lawyer’s Bar (Washington State Association for Justice) to thank for working with its membership to use the court system to strike down many of these restrictions as unconstitutional.

So patients here are fortunate relative to many other states. And, contrary to proponents of such restrictions on a patient’s ability to recover for harm caused by health care providers, malpractice insurance for doctors has not risen, and doctors have not left our state in droves.


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