Poll: Weak support for Prop. 46 targeting medical malpractice

Reporting from SACRAMENTO  —  Voter support appears to be soft for a November ballot measure that is the subject of a heated and potentially costly battle between the lawyers who back it and the doctors and insurers who oppose it, according to new USC Dornsife/Los Angeles Times poll.

The measure, Proposition 46, would increase California’s limits on pain and suffering awards in medical malpractice lawsuits, and it would require drug testing of physicians. Its fate could hang on the strength of the rival campaigns, the survey suggests.

The lawyers tout the proposal as a patient safety initiative that would rein in negligent and impaired doctors. Physician groups and insurance companies cast the plan as a money grab by attorneys that would raise healthcare costs.

Among likely voters, 61% favored the measure, or leaned in that direction; 29% were opposed.

But that approval slid to 47% when respondents were told of high potential costs to the state — as well as possible savings — and opposition rose to 39%.

Backing eroded further when those surveyed heard both sides’ main campaign arguments. Support fell to 37%, with 50% opposed.

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For the Record

USC/Times poll: An article in the Sept. 13 LATExtra section about a USC Dornsife/Los Angeles Times poll on Proposition 46 was based in part on a survey question that contained an error. The proposition would raise the state ceiling on damages for pain and suffering in malpractice lawsuits, require random drug and alcohol testing of physicians and require doctors, when prescribing medications, to consult a state database of patients’ other prescriptions. The poll found that 61% of likely voters were in favor of the measure or leaning in that direction but that approval dropped when respondents were told of the proposition’s potentially high costs to the state — and declined further when they heard the main campaign arguments for and against the proposition. One of the poll questions summarized those arguments and then asked respondents how they would vote on the initiative in light of that information. Referring to one of the opposition arguments, the question said that Proposition 46 “establishes a massive new database filled with Californians’ personal medical prescription information run by the government.” That statement was in error. In fact, the database already exists, and the question should have reflected that. A spokesman for Consumer Attorneys of California, which supports Proposition 46, complained that the error likely skewed the poll results. The bipartisan team that conducted the survey — Drew Lieberman of the Democratic firm Greenberg Quinlan Rosner Research and Dave Kanevsky of the Republican company American Viewpoint — said the results would likely not have been materially different if the question had been phrased correctly. “There are certainly instances when the difference of a few words in a question can create a very different response,” the pollsters said in a statement. “But given the structure and length of this question, and considering it within the context of the results on five total Proposition 46 questions in this poll, it is our professional opinion that different phrasing is unlikely to have altered the results significantly.”

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Approval for the measure is “a mile wide and an inch deep,” said Dave Kanevsky of American Viewpoint, the Republican half of the bipartisan survey team. Favorability “looks strong but starts to fold when voters hear both sides.”

Proposition 46, has three components. The one requiring random drug and alcohol testing of doctors was popular among those surveyed: 68% of likely voters were in favor of it, while 25% were opposed.

The provision on pain and suffering damages, which have been capped at $250,000 since 1975, would increase that maximum to about $1.1 million, to account for nearly four decades of inflation. That limit would be indexed to future inflation rates.

Respondents were far less enthusiastic about the increased cap: 47% of likely voters opposed it, while 42% approved.

“The initiative sponsors were very smart. They tried to cover up a very controversial policy measure with a very popular one,” said Dan Schnur, director of the Jesse M. Unruh Institute of Politics at USC. “But a ballot initiative is only as strong as its weakest link.”

A third element of the initiative — requiring doctors to check a statewide database before prescribing certain medications in an effort to curb drug abuse — was not polled.

Shirley Duncan, a Republican from Santa Maria who participated in the poll, said she supported parts of Proposition 46, such as the drug testing.

“Doctors have a big responsibility to help their patients,” said Duncan, 73. “If they don’t have their full faculties, they can’t do that.”

But Duncan said opponents’ arguments that the measure would increase healthcare costs resonated with her, and she would probably vote no.

Kirk Parker, a Democrat from Davis, felt that higher malpractice awards would be a boon for attorneys, but he was leaning toward a “yes” vote anyway.

“The award for genuine malpractice cases needs to be higher,” said Parker, 64. “Two hundred fifty thousand dollars is not very much money these days.”

Drew Lieberman of Greenberg Quinlan Rosner Research, the survey’s Democratic pollster, said opinion on the initiative was “fluid” enough that the outcome could depend on the relative strengths of the warring campaigns.

“The money that gets spent could make a huge difference,” Lieberman said.

So far, opponents have a commanding lead in the money race, which typically determines how much statewide advertising is possible. They have raised $55 million, primarily from insurance companies and medical providers.

More than half of that considerable sum comes from three medical malpractice insurers — the Cooperative of American Physicians, the Doctors Company and NORCAL Mutual Insurance Company — which have each contributed $10 million or more.

The opposition has been advertising on television and radio since last month.

The initiative’s backers, meanwhile, have brought in $5.5 million. Their donors are predominantly attorneys and law firms; the advocacy group Consumer Watchdog has also provided funding.

The “Yes” side has an online ad featuring U.S. Sen. Barbara Boxer (D-Calif.) praising the measure.

The USC Dornsife College of Arts and Letters/Los Angeles Times poll of 1,507 registered California voters was conducted by telephone Sept. 2 through Sept. 8. The margin of error is plus or minus 2.9 percentage points overall and 3.3 points for likely voters.

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