Doctors take on malpractice reform

Many Washington state doctors will ask their patients to sign a petition favoring malpractice reform, Dr. Jeff Collins said Tuesday.

Collins, a Spokane doctor and president of the Washington State Medical Association, spoke at a Spokane press conference launching the campaign for Initiative 330.

The initiative would cap so-called pain and suffering damages to medical malpractice victims at $350,000.

State and national lawmakers have deadlocked on malpractice reform in recent years.

Doctors blame their rising malpractice insurance premiums on large jury awards and out-of-court settlements to injured patients. Some doctors have stopped delivering babies because of fear of million-dollar lawsuits.

Dr. Lauri Costello is one of them. The Spokane doctor said she left Spokane’s Family Health Center and the specialty of family practice last year because of the “blame and sue” mentality she observed. She now works as a freelance surgical assistant, she said.

She said a judge recently ruled against Family Health Center at an arbitration of a malpractice case, awarding a plaintiff $1 million. Both sides signed a secrecy agreement, so she would not give more details. She said the lawsuit “had no merit.”

A Spokane attorney later disputed her view of the case.

“There’s no such thing as a case that has no merit that results in a $1 million award from a judge,” attorney John Allison said. “And in Washington state, no case can proceed to a trial or be determined by a judge unless a plaintiff has offered a qualified medical expert testifying that a doctor was negligent. The onus is on the plaintiff to hire, at great expense, a qualified medical expert.”

If the I-330 petition gathers 197,734 valid signatures by the end of the year, the Legislature would be forced to approve it or put it on the ballot in 2005 and let voters decide.

Critics of the initiative say it interferes with a citizen’s right to a jury trial. The initiative would prevent a jury from being informed of the $350,000 limit on “pain and suffering” damages. So a jury could decide on an award that wouldn’t be allowed under the initiative.

The initiative, however, would allow juries to be informed of other sources of payments to injured patients, such as health insurance. That would prevent double payments, the sponsors say.

There would be no limit on jury-awarded damages such as lost wages, medical bills or rehabilitation.

The initiative also would:

• Limit plaintiffs’ attorney fees based on a formula. An attorney suing a doctor or other health-care provider could charge a client only up to 40 percent of the first $50,000 recovered in a lawsuit, then 33.3 percent of the next $50,000 recovered, 25 percent of the next $500,000 recovered and 15 percent of any amount over $600,000.

Thus, a lawyer could make no more than $221,500 on a $1 million award. Attorneys now sometimes charge 50 percent of an award, plus expenses.

• Establish a three-year time limit on filing malpractice claims. An exception would allow a lawsuit on behalf of a child under age 6 until the child turns 8 years old. There is no time limit now.

The Washington state Supreme Court ruled in 1989 that caps on damages are unconstitutional, but the doctors group says they have legal reasons to believe their initiative could withstand a constitutional challenge.

Mark Firmani, a spokesman for Citizens for Patient Rights, a group affiliated with the Washington State Trial Lawyers Association, called the initiative “blatantly unconstitutional.” The attorneys group plans its own initiative to attack the problem of rising malpractice premiums through insurance reform.