Cure for steep health costs?
Saturday, October 22, 2005 11:52 PM PDT
By Don Jenkins
Printable version
E-mail this articleThe medical and legal professions agree that malpractice insurance rates threaten to make high-risk specialties, such as delivering babies, unattractive for doctors.
After that, they don't find much common ground.
For several years, state lawmakers have failed to produce a bill to lower premiums for physicians. One Longview obstetrician told legislators he paid $51,000 a year for insurance, even though he hadn't been sued in 21 years of practice.
Physicians and hospitals are touting Initiative 330 as the cure.
Provisions include capping jury awards to injured patients, limiting attorney contingency fees and requiring patients to agree to settle disputes through binding arbitration rather than in court.
Insurance companies could pay out judgments over time instead of in a lump sum, and injured patients would generally have to file suits sooner after being injured.
Lawyers oppose I-330 and back Initiative 336, which calls for more consumer participation in setting premiums, making out-of-court settlements public to help patients identify bad doctors and a "three strikes" law against physicians guilty of malpractice.
The measure also would establish a new insurance program to pay large claims and increase the representation of "patient advocacy groups" on the state board that disciplines doctors.
If both initiatives win voter approval, courts and lawmakers would likely have some work to do to sort out conflicts.
Sen. Mark Doumit, D-Cathlamet, said he would rather see both initiatives fail.
Maybe then, he said, both sides will adopt a new attitude toward negotiating a compromise.
"They've wanted it all their way, and the Legislature doesn't work that way, where people get everything they want on controversial issues," Doumit said. "Both sides represent a legitimate grievance, but they haven't really wanted to come to the table."
Bitter debate
For an hour this week, Washington State Medical Association executive director Tom Curry and I-336 sponsor Dylan Malone sat at the same table to debate the issue for The Daily News editorial board.
They didn't find middle ground, expect for mutual animosity.
Curry said I-330 would get at the root of the malpractice insurance problem --- too much and too expensive litigation.
"This is about a tort system that is arbitrary and capricious," he said. "Premiums are driven by losses and the cost to defend cases. It's not a mystery."
Curry described I-336 as a "sham" that wouldn't make patients safer. He said lawyers concocted the measure as a "retribution in response to our efforts to pass reasonable tort reform."
Malone, an Everett resident whose son Ian died last year from injuries suffered in a botched delivery in 1999, disputed the claim that I-336 isn't an attempt to make patients safer.
"What the hell does he think I do this for? I get out of bed every morning trying to figure out how to make sure less people end up like Ian did. That's what this is all about," Malone said.
I-330, on the other hand, would "make it harder for people already suffering," he said.
"I have a moral responsibility for the next Ian Malone who comes along."
Each accused the other of distortions and outright lies over the effects and motives of the initiatives.
They've debated each other before, and it's gotten personal.
Malone has on his laptop computer a clip of Malone asking Curry at a public forum, "Have you no shame?" And Curry responding by saying they could settle it later on the "sidewalk."
"It's been an ugly campaign," Malone said. "Tom and I don't like each other very much."
Curry didn't argue with that statement.
Money on all sides
As of mid-October, $12 million had been raised to support or oppose the measures, according to reports filed with the Public Disclosure Commission.
A political action committee supporting I-330 has raised nearly $7 million, thanks to doctors, hospitals and insurance companies. Physicians Insurance, which insures a majority of the state's doctors, has contributed more than $700,000.
St. John Medical Center gave $50,000 to the pro I-330 campaign.
"The reason we're supporting it is we support a strong local health-care structure," said Scott Laubisch, the hospital's regional vice president for public affairs and business development.
"To have that, we need good providers and providers who can afford to practice," he said. "I know we have trouble recruiting physicians for this community."
Political action committees supporting I-336 or opposing I-330 have raised more than $5 million, with the Washington State Trial Lawyers Association (WSTLA) giving $1.3 million in cash or in-kind contributions.
Malone said he fears voters will see the issue as one of lawyers vs. doctors, while forgetting injured patients.
"If 336 didn't have WSTLA's fingerprints on it ... it would pass with an overwhelming margin of support," he said.
"He (Curry) has been very successful in portraying it as being an evil scheme by guys shoving bills in their pockets and chewing on the stogies."
I-330 proposes capping jury awards for "noneconomic damages" (such as pain and suffering, and loss of enjoyment of life) at $350,000 in most cases.
The Washington Supreme Court ruled in 1989 that capping jury awards in liability cases is unconstitutional, but I-330 supporters hope the court will reconsider and allow caps applied to medical malpractice suits.
Longview lawyer John Barlow said I-330 falsely assumes jury awards are driving up medical malpractice rates. A cap would only deprive injured victims of winning a judgment to fit their case, he said.
"There are all kinds of different factual situations. One size doesn't fit all," he said. "We don't have an 'eye for an eye, a tooth for a tooth.' We use money. That's the measure."
I-336 supporters say the measure would lower litigation costs by limiting each side in a lawsuit to two expert witnesses, unless a judge rules more are needed.
"It's always been well known an insurance company can outspend an injured person or his or her lawyer," Barlow said. "If it's just a beauty contest to see who can find the most experts, they will always win."
The measure also requires that lawyers filing a suit declare in writing that it's not "frivolous" --- although court rules already bar attorneys from bring baseless suits and only an "absolute idiot" would spend time on one, Barlow said.
"I think that was a direct response to deal with the allegation heard all the time about frivolous lawsuits, which is insane," he said.
Policy by anecdote
In an effort to keep doctors out of court, I-330 would allow health-care providers to require patients to waive their right to sue before being treated.
Disputes would go to binding arbitration, which would settle claims quicker, benefitting injured patients, Curry said.
Malone said arbitration would be fine for small claims. But in major cases, injured patients need access to a court and jury to fully air their grievances, he said.
The state Office of the Insurance Commission reported this month that 10,212 medical malpractice claims were closed over the past 10 years, and 45 resulted in jury verdicts in favor of the patient.
Based on that and other information about legal and settlement costs, Insurance Commissioner Mike Kreidler concluded that "medical malpractice claim payments have stabilized over the last few years, which should be good news for physicians and surgeons --- at least in the near term."
I-330 supporters dismissed the study as incomplete. They note Kreidler doesn't have access to settlements involving self-insured hospitals and physicians covered by out-of-state companies that insure high-risk specialties.
Even while drawing conclusions, Kriedler acknowledged the shortcomings of his office's study and said he will again ask the Legislature to give him the authority to collect more information to get a fuller picture.
"It's time to move from policy decisions based on anecdotes to decisions based on data that can really solve problems," he said.
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