Malpractice reform not a simple issue
Self-serving medical malpractice initiatives drafted by Washington’s doctors and lawyers have finally forced the Legislature to draft a responsible plan for moderating the excessive monetary judgments that are contributing to doctor flight from Spokane.
The question now is whether the lawmakers’ “Plan B” emerges from a Senate Judiciary Committee executive session Tuesday. If not, there will be no alternative to doctor-prescribed Initiative 330 and lawyer-favored Initiative 336 on the November ballot, with the possibility voters could pass both.
Prognosis: Courtroom coronary.
Lawmakers have repeatedly ducked malpractice reform. Their inaction has coincided with a “hard” insurance market in which insurance companies offset weak investment returns with steep premium increases. At Sacred Heart Medical Center, for example, the cost of malpractice coverage has almost quadrupled since 2000. Hospitals cannot move, but doctors also contending with oppressive insurance premiums can, and do. With patients in tow.
Idaho has been an attractive haven for disgruntled Spokane physicians. Laws there are hostile to malpractice claims. Gov. Dirk Kempthorne just signed a bill lowering the limit for non-economic damages to $250,000 from $400,000. Throw in the burden of Washington’s business and occupation tax, and federal Medicare reimbursement rates that penalize the state’s doctors, and practitioners of everything from anesthesiology to urology head for the border.
Damage caps have become the focal point for reformers, but that should not be the start or end of malpractice overhaul.
Washington does not limit judgment amounts, nor the scope of potential liability. A new study of malpractice laws in Washington, Oregon and Idaho contrasts the vulnerability of third parties to judgments against negligent caregivers. Also, unlike the other two states, injured patients in Washington can win damages even if they are 99 percent at fault. Claims for the possible consequences of injuries suffered as a child can be filed as late as the individual’s 21st birthday, as opposed to 19 in Oregon and just eight in Idaho.
I-330 would bring Washington law closer to that of the other two states. And for their antagonists — trial lawyers — medical practitioners would limit attorney fees, and impose notification and mediation requirements.
The lawyers and I-336 counter with requirements for more disclosure from hospitals, doctors and insurers regarding claims histories. Attorneys would have to certify client claims are not frivolous, under penalty of sanctions. The state would establish a supplemental insurance fund. Doctors who pay three claims of more than $50,000 in a three-year period would be subject to investigation, and possible loss of license.
Plan B is more comprehensive — and less retaliatory — than either of the initiatives. Among its pluses are a provision for arbitration, immunity for whistle-blowers who report unprofessional conduct, and much-improved reporting of all malpractice judgments, settlements and payments. It does not contain a cap for non-economic damages. Insurance Commissioner Mike Kreidler has testified for the proposal, which is HB2292 in the Legislature.
It’s too bad it took the blatantly special interest initiatives to get lawmakers to develop a serious response to Washington’s malpractice issues. Studies by Kreidler’s office, but the way, indicate the problem is not as severe as the medical industry suggests, but reasonable reform is in order. Unfortunately, some pressure for change comes from Bush Administration proposals to address malpractice at the federal level, instead of deferring to the states, where many states are finding their own solutions.
Plan B should be Washington’s response, although it does not circumscribe liability as much as it might. But putting a legislative plan on the ballot with I-330 and I-336 will compound likely voter confusion over the merits of each plan, as well as the potential legal snarl that could follow the election.
The only obvious winners from a two- or three-way confrontation this fall over malpractice are the media. Well-heeled lawyers and doctors will likely engage in what could be an epic spending war. Plan B may come off as Brand X unless a coalition of consumer or business groups emerges as advocates.
Bottom line, Washington needs a law that helps assure the best possible medical care for state residents. Expensive malpractice premiums, and the threat of expensive claims, clearly defeat that purpose. When an alternative is only 30 miles up the road, the need for action is particularly urgent, even if it is Brand X.