Professor Nora Freeman Engstrom weighs in on damage caps and the “terrible side effects” they create with California Lawyer's Ben Adlin. 

A 39-year-old limit on medical malpractice damages doesn't translate easily to a 30-second campaign spot. But a confluence of frustration, tragedy, and political bargaining has California consumer attorneys hopeful that Proposition 46 on November's ballot is their best attempt yet to lift a cap on noneconomic damages that they say unfairly stymies victims.

The measure – which spawned one of the nation's priciest electoral contests this year, with more than $67.5 million donated in support and opposition by September – is a mishmash. It would quadruple the damages cap to $1.1 million and add an inflation adjuster; it would require doctors to check patients' narcotics prescription histories; and it would mandate drug testing of doctors. Advocates say the three prongs are equally important, but some have acknowledged they hope the last element would finally turn a long-running battle over damages in their favor.

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October 2003 was a turning point for lawyers fighting the cap. Just as they were closing in on success in the Legislature, they lost a key ally when Gov. Gray Davis was recalled. But they gained important champions after two young children were killed in Danville by a driver high on prescription drugs. When the grieving parents, Bob and Carmen Pack, consulted lawyers about suing Kaiser Permanente for negligence, the first nine refused their case, citing the cap on noneconomic damages. In addition, economic damages for victims with low incomes – or none, like children – may be reduced to zero. “Damages caps are a blunt instrument,” says Stanford University law professor Nora Engstrom. “They're bad at what they purport to do, and they have terrible side effects.”