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Fixing medical malpractice

Craig Mason Special to The Spokesman-Review

Earlier this month, the Washington State Supreme Court struck down the requirement that medical malpractice plaintiffs file a “certificate of merit” as part of filing their lawsuit. In Putnam v. Wenatchee Valley Medical, the court said that this legal requirement deprived injured people proper access to the courts.

The certificate of merit requirement meant that a plaintiff had to find a medical expert, before filing suit, who would swear that there was a “reasonable probability” that the doctor had committed malpractice.

The Supreme Court held in Putnam that the requirement to have all these facts before filing suit, when these facts are usually dug up during the lawsuit, deprived people of access to the courts, and that the Legislature over-reached the division of powers by putting this procedural hurdle in front of would-be plaintiffs. Courts run their own procedures, not the Legislature.

In the Putnam case, the Supreme Court insists that if the Legislature is going to interfere with somebody’s ability to sue, it has to provide a complete substitute process and substantial rights that make sure the plaintiff can collect reasonable compensation.

Consider the way industrial insurance is handled by the Department of Labor and Industries. It used to be that if an employee got hurt because of an unsafe workplace, he had to sue his boss to recover for his injuries. He might win, but he might lose. Then lawmakers came up with industrial insurance, which would compensate injured workers no matter who was at fault. To make it palatable to employers, who foot the bill, they took away workers’ right to sue in court for more damages, or for large emotional damage awards.

Courts in all states accepted this limitation on each side’s due process rights, because each side got something of value guaranteed in return. The Legislature could modify procedure as part of a “compromise” that guaranteed workers compensation without risk of losing lawsuits. Thus, an administrative procedure can constitutionally replace a court procedure.

The L&I example is a system of “strict liability.” No one fights over liability, but there can be administrative disputes over the extent of the damages. Again, this process is only administrative, with court review of the process, but not of the result.

I believe it is time for strict liability in medicine – time for a medical scheme that resembles L&I. There should be compensation, without worrying about “fault” determinations, for all people injured as medical consumers. Here are the major bases for my view:

First, I worked in a surgery ward for a year and a half when I was an undergraduate, and I know that vast amounts of medical malpractice never get litigated, or even acknowledged by patients, and harmed patients don’t recover their damages.

Second, when a medical procedure causes harm, that is a “cost” of medicine, and it is a “cost” that is “privatized” to the harmed person. It is an “externality” – a cost imposed upon society that only random private individuals must bear, and it does not appear in the “price” of medicine.

If we have a scheme of strict liability, then all costs of medicine – the good results and bad results – will be incorporated into the “price” of medicine. (Economists call this “internalizing” all costs of a product.) Just as a dangerous industry, like coal mining, has high L&I fees, so will dangerous surgeries have to internalize the costs of all harm done by the procedures.

Safe surgeries, like safe jobs, will have little additional insurance cost to incorporate into their prices.

Doctors and patients need not fight over liability. All harms will be reasonably, though modestly, compensated through an administrative process. This is consistent with Putnam.

I firmly believe that medical services are over-consumed in America, because their price hides the losses of the bad outcomes. With strict medical liability, resembling L&I, all harmed persons will get something, and all costs of the medical industry will be incorporated into the system.

Some doctors will be trying to stir outrage over this decision, as they wish for malpractice to be hidden, and they wish for the rate of bad outcomes to be obscured.

Instead of lapsing into a “culture war” over trial lawyers vs. defense lawyers, let us use the Putnam decision to make sure that the medical industry pays its full way.

Currently, too many medically harmed people go without compensation, and without media attention, while the very, very few who might get “too much recovery” for, say, losing a limb needlessly, are highlighted in a drama-seeking media.

With L&I as the model, we can build an administrative system of strict liability, which internalizes all the costs of medicine into the price of medical goods and services.

This will allow society and individuals to properly allocate resources to the medical industry.

Craig Mason is a Spokane native, attorney and educator.
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