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Why You Should Vote YES on 46

Vote YES ON 46. Don't believe the "greedy lawyer" rhetoric. Think it through.

If Prop 46 fails it is unlikely you, your parents, your kids, or anyone in the community will find a lawyer to represent them in most instances of malpractice. Don't believe the "greedy lawyer" rhetoric you see repeatedly on the television commercials purchased by the malpractice insurance companies.

Don't believe that doctors' malpractice insurance rates will skyrocket either. We are one of the few states in the country with dramatic limitations for victims of medical malpractice and all of those physicians in other states continue to practice medicine.

Here's why Proposition 46 must pass in order to preserve the civil justice system in California for malpractice victims:

• If 46 doesn't pass, the expense of litigating a malpractice case, even in instances of clear malpractice, will generally exceed the potential recovery value.

  • The cost of doing a malpractice case and the difficulty of litigating a malpractice case are 10's on a 1 to 10 scale. Physicians, who normally accept a reasonable rate for patient care limited by health insurers' payments, make up for it by charging lawyers exorbitant rates - as much as $1,000.00/hr to consult with them. We cannot pursue any malpractice case unless we have a qualified physician to act as an expert witness on behalf of the victim. This consulting physician must review often times hundreds of pages of medical records, deposition testimony, CT scans, MRIs and other data in order to arrive at an opinion that will stand up in court. In most malpractice cases the lawyer must retain multiple experts in different specialties. The entire expense of these cases is borne by the victim's lawyer.
  • Malpractice lawyers representing victims of malpractice must accept a fee that is limited by law to a percentage of the total recovery that is self-limiting by the $250,000 cap and too small for lawyers to make a reasonable profit or any profit often.

Conversely, malpractice lawyers representing doctors and retained by insurance companies have no limitations on their fees or costs. The insurance companies pay the entirety of those costs and fees whether the lawyer wins or loses the case.

  • Although economic damages (loss of wages, unreimbursed medical costs) are recoverable, very few victims of malpractice qualify for economic loss recovery. Very few are no longer able to work despite severe or catastrophic injuries. For example an amputee may be able to continue working at a desk job, so despite losing his leg, he may not have any wage loss thus limiting potential recovery to $250,000 pain and suffering.
  • The risk of losing is high. The overwhelming percentage of medical malpractice cases that proceed to trial are lost by the victim. Those statistics are easily located online. The victim's lawyer bears the risk of losing the entirety of his or her cost outlay on behalf of the malpractice victim.

    It is time that physicians be exposed to the same responsibility any professional in the community has. If they make a mistake, they should be responsible to pay for the entirety of that mistake within reason.

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