Would Proposition 46 make it easier for those who believe they were victims of medical malpractice to find attorneys to represent them?

Yes. Because expected awards to some malpractice plaintiffs will increase and fees are typically calculated based upon the award, it will be easier for some plaintiffs to find attorneys to take on their cases.

Proponents of Proposition 46 argue that California's limit on noneconomic damages makes it very difficult, if not impossible, for injured plaintiffs to find well-qualified attorneys to represent them. RAND research offers evidence that a less restrictive cap on damages would make some malpractice cases more attractive to plaintiff attorneys, and thus make it easier for some plaintiffs to find legal representation.

In 2009, RAND surveyed more than 900 malpractice plaintiff attorneys in 42 states and the District of Columbia, asking about their likelihood of their agreeing to represent clients across a series of hypothetical, meritorious malpractice cases. Information from each survey scenario could be used to compute an expected hourly fee for the attorney, taking into account that the award for noneconomic damages cannot exceed the state's cap.

The study demonstrated that:

  • generally, plaintiff attorneys were more willing to take on cases with higher expected hourly fees
  • as a result, attorneys were generally less willing to take cases where a noneconomic damage cap would likely lower the award.

If passed, Proposition 46 would raise the level of California's noneconomic damage cap from $250,000 to over $1 million. The potential effect of such a change on an attorney's willingness to take a meritorious case can be illustrated using two simple examples.

Example 1

Suppose a plaintiff seeks representation in a case where the expected jury award for economic damages would be $250,000, with $1 million in noneconomic damages. The case would take an attorney 500 hours to prepare. If the plaintiff were to win the case, California law limits attorney fees to a "sliding scale" depending on the amount of the award, as shown below:

Size of award after expenses Attorneys' fees
First $50,000 40%
Next $50,000 33%
Next $500,000 25%
Any amount over $600,000 15%

In this case, under current law, the expected award would be $500K ($250K in economic damages + $250K in noneconomic damages [capped from $1 million]). Based upon the schedule, expected fees would be $137K ($50K x 40% + $50K x 33% + $400K x 25%), for an expected hourly rate for the attorney of $273.

If Proposition 46 passed and noneconomic damages were subject to a new cap of $1.1 million, the expected award would be $1.25 million ($250K in economic damages + $1 million in noneconomic damages). Based on the schedule, expected fees would be $259K ($50K x 40% + $50K x 33% + $500K x 25% + $650K x 15%), or $518 per hour.

In such cases, the prospect of a higher hourly fee would make it more likely that an attorney would accept the case than it is now.

Example 2

Consider now a meritorious case with expected economic damages of $250,000, and non-economic damages of $250,000. Because the expected noneconomic damages are already below the currently existing cap, we would not expect the passage of Proposition 46 to directly affect the willingness of attorneys to take this case.


Because it is unclear what the pattern of potential noneconomic damages will be in future cases, it is difficult to predict just how many additional plaintiffs might be able to obtain representation if Proposition 46 passes. However, it is plausible to expect that the new law would make it easier for injured patients to find representation for some claims.