Who Really Lost When California Voters Said 'No' to Prop. 46

Unfortunately, it seems as though some California voters thought Proposition 46 was all about increasing trial lawyers' fees in medical malpractice cases. Fb14352, a reader who commented on Kenny Goldberg's KPBS report, wrote, "Drug testing of Doctors was just a ruse. The real reason for the Prop 46 was to get more incentive for lawyers to sue and make more money. I am so happy that Californians could see through their lies."

It is true that a lawyer's fee would increase proportionately to an increase in the injured patient's compensation. A cap on damages for pain and suffering (currently set at $250,000) limits the patient's financial compensation and by extension the lawyer's fee. It is a business reality that medical malpractice cases, which lawyers generally take on a contingency fee basis (no recovery, no fee), are very expensive and can be risky to take on (another reason to doubt the so-called "frivolous lawsuit" epidemic).

Allowing for a higher fee helps lawyers accept that risk and allows greater access to justice for injured patients, who otherwise may not be able to find a lawyer with the resources and expertise necessary to help them.

Defeat of Prop 46 Only Hurts Injured People

Beyond the business reality, however, is the fact of the often-grievous impact on a patient from medical malpractice itself, a topic that seems to have been generally overlooked and largely ignored in most mainstream reporting on Prop 46.

Melanie Mason for the Los Angeles Times reports on the measure's three components (raising the cap; drug testing for impaired physicians; requiring prescribing physicians to check a state database to curb drug abuse), that will no longer come to fruition as a result of its defeat. And Alejandro Lazo for the Wall Street Journal writes that the $250,000 damages cap makes it "hard to bring cases to trial."

But then there is Annette Ramirez, and others like her, who were seriously injured from medical negligence, whose lives will never be the same. You can see Ramirez's story in the video below.

Lost to Prop 46's defeat is Ramirez's sense of justice.