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Spokane, Washington  Est. May 19, 1883

Malpractice reform complicated

For years, patients have been urged to take a greater role in their health care decisions. Next month, Washington voters will get a chance to make major decisions on a key aspect of their health care system.

Voters actually will have two separate decisions on the Nov. 8 ballot, on a pair of initiatives a few digits apart that want to change things about the medical malpractice system in Washington state.

Initiative 330, which draws much of its support from doctors, hospitals and other health care organizations, would change the way patients can sue if something goes wrong with the medical care they receive. Among its proposals are limits on how much a patient can receive for certain damages, how that money could be paid out and how much of a cut a lawyer can take of those awards. It also requires mediation before a lawsuit is filed and allows insurance companies to require their clients to settle malpractice through binding arbitration.

Initiative 336, which draws much of its support from lawyers, would change the way health care professionals are watched and regulated. It gives the state insurance commissioner new controls over medical malpractice rates, sets up a supplemental malpractice insurance program, adds people who aren’t from the health care industry to the state board that oversees medical professionals, and limits the number of expert witnesses in a malpractice trial.

Each initiative tries to tackle the overall problem of more malpractice claims and higher malpractice rates from a different direction.

One way to look at the dueling ballot measures: I-330 is the health care industry’s attempt to change the rules covering lawyers; I-336 is the legal profession’s attempt to change the rules covering the health care industry.

This has led to an acrimonious exchange of campaign commercials, with I-330 supporters portraying lawyers as cigar-smoking money grubbers and I-336 supporters invoking the memory of victims of disastrous medical mistakes.

Despite the simplistic campaign messages, the two initiatives involve complicated issues that defy simple solutions, said Jeannie Hale, who helped prepare reports on both for the League of Women Voters ballot guide.

“The biggest problem we had in dealing with our analysis was all the conflicting studies,” said Hale.

The rising cost of malpractice insurance has been studied by government agencies, public advocacy organizations, medical associations and the insurance industry. The league studied about a dozen such reports, and found conflicting data and conclusions.

“We insist that any argument have a factual basis,” said Hale, who added the league is not supporting or opposing either initiative. “For any claim, we asked ‘What study did you rely on?’ “

But for every report from the medical industry that tied rising malpractice rates to increases in lawsuits and jury awards, there was another that showed those rates rising for other causes. Some studies try to project the experience in another state, or the nation as a whole, onto Washington state. Others relied on incomplete data.

The league refers to many of the studies in its voters guide. But among the many studies, Hale believes the most objective are one from Citizen Action, a national public advocacy group, and another from the state Insurance Commissioner’s Office’s annual Medical Malpractice Insurance Report.

Both are critical of the proposition that malpractice rates are rising primarily because of personal injury lawsuits against the health care industry.

“There is so much more that will affect (malpractice rates) than caps,” said Insurance Commissioner Mike Kreidler.

Those rates, which must be filed with the state, stayed down in the late 1990s because insurance companies were fighting for market share – so low, in fact, that some companies left the state; at least one business got in financial trouble and had to be taken over by his office, Kreidler said. They went up fast in 2001 and 2002, but more recently are flat or in some cases declining, says the state study which was updated earlier this month.

Analysts also looked at malpractice claims and concluded they were “rising at a rate that’s comparable to medical inflation,” he said.

That doesn’t mean that Washington doctors, who generally receive lower reimbursement rates than their counterparts in other regions of the nation, aren’t being squeezed. “It’s harder for them to absorb (malpractice) rate increases.”

Kreidler, whose office would administer some of the changes required in I-336, is no fan of that proposal, either: “Both are fundamentally flawed.”

Kreidler helped write the argument against I-330 in the state’s voters pamphlet at the request of the state trial lawyers but said he’d have been happy to contribute to the “Vote No” section on I-336, had anyone from the state medical association asked.

“The cost of malpractice insurance is not inconsequential,” he said. “Neither is not having malpractice committed against you.”

But the issue is so complicated that he thinks the Legislature is a better place for coming to changes that affect both sides of the malpractice fight, along with other problems in the health care system like the access to medical treatment and the cost of health insurance.

Hale agreed that the issue is complicated – I-330 may be one of the most complex issues voters will ever face, she said – but she doesn’t believe it’s too complicated for the ballot if voters will take the time to study both proposals and weigh the arguments of each side.

“It’s difficult, but we’ve got a pretty intelligent electorate,” Hale said.

While the initiatives are competing for voters’ attention, they don’t pose a clear legal conflict, should they both pass, said Jeffrey Even, a deputy attorney general who studied both to prepare a ballot title before signature gathering began, and a voters guide synopsis for the general election.

Initiatives are routinely challenged if they pass, and any change in the law could become the focus of a future malpractice lawsuit or appeal. But in the initial look at possible conflicts, “nothing popped up,” Even said.