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Washington State physicians, attorneys reach medical liability compromise
The law requires binding arbitration for alleged damages under $1 million. State orthopedist group calls it ‘tort reform lite’ because it carries no ‘caps.’
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Washington State physicians and attorneys recently forged a medical liability compromise that does not include caps on noneconomic damages but makes some physician apologies for mistakes inadmissible in court, according to the Seattle Post-Intelligencer. Gov. Christine Gregoire signed the bill into law in early March.
The state House introduced the bill three months after voters rejected two widely contrasting malpractice reform initiatives in a statewide referendum last November.
Apologies or expressions of regret made within the 30-day discovery, or fact-finding, period are inadmissible in court. The bill also requires a “quality expert” to complete a “certificate of merit” stating the probability that a defendant’s conduct did not meet standards.
Washington State Trial Lawyers Association President Jack Connelly said the bill provides industry “transparency” that will help physicians get affordable malpractice insurance, the Post-Intelligencer said.
The Washington State Medical Association (WSMA) and Washington State Orthopaedic Association (WSOA) called the bill “tort reform lite” because it excluded certain provisions, according to WSOA President Ed Farrar, MD.
“We did not get joint and several liability reform,” Farrar told Orthopedics Today. “We did not get caps. And we did not get periodic payments. So, that’s why we called it ‘tort reform lite.’ I think the big news for us, in a negative sense, is that it does not include any kind of caps on settlement ... (caps) seem to be the piece that really does lead to lower insurance costs.”
However, the bill includes some items on the WSOA’s wish list, including mandatory 90-day notice of liability insurance cancellation or non-renewal. The former notice period was 45 days. The bill also includes the option of binding arbitration in cases involving less than $1 million in damages, a measure the WSOA supports, Farrar said.
One of the rejected reform initiatives would have capped noneconomic damages at $350,000. The initiative’s supporters — physicians, hospitals and drug companies — said it would have limited large damage awards, enhanced access and stemmed the state’s loss of physicians.
The other initiative would have authorized the state to revoke some physicians’ licenses for three years. Its sponsors included trial lawyers, consumer advocates and labor groups.
Before the referendum, the Association of Trial Lawyers of America warned that I-330 “would have limited compensation for non-economic damages ... in all cases, no matter how severe the injury or how bad the mistake by the hospital or medical provider.”
Tennessee joins ‘crisis’ states
Elsewhere, the American Medical Association recently named Tennessee its 21st medical liability “crisis” state. Seventy percent of the state’s physicians believe the state lacks many high-risk specialists, the AMA said.
The other “crisis” states are Arkansas, Connecticut, Florida, Georgia, Illinois, Kentucky, Massachusetts, Mississippi, Missouri, New Jersey, Nevada, New York, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, Washington, West Virginia and Wyoming.
A 2004 AMA survey showed 49 of Tennessee’s 95 counties having no resident orthopedic surgeons in patient care; 47 counties lacking resident emergency physicians; 81 counties with no residing neurosurgeons; and 42 counties devoid of obstetrician-gynecologists.
Medical Liability Reform Now or Pay Later (MLRNow), a Tennessee advocacy group, blamed “defensive medicine,” frivolous lawsuits, trial lawyer contingency fees, litigation costs and high non-economic damage awards.
Tennessee’s situation indicates a national crisis, said Stuart L. Weinstein, MD, chairman of Doctors for Medical Liability Reform (DMLR), which represents more than 230,000 physicians from 11 specialties.
“The bottom line here is that the liability crisis continues in this country,” Weinstein told Orthopedics Today. “I think that those are pretty startling statistics. I think that the American public should be alarmed about their access to care. What you see is rising liability costs in the face of decreasing reimbursement forcing physicians to rethink their careers and the services that they’ll provide.”
Weinstein voiced optimism about Congress passing federal liability reform legislation this year. President George W. Bush’s sweeping health care initiative includes liability reform provisions. National reform opponents include the National Conference of State Legislatures (NCSL), a bipartisan organization that supports state reforms and opposes federal tort legislation.
For more information:
- Tennessee joins states in medical liability crisis. American Medical Association. Feb. 14, 2006. Available at ama-assn.org/ama/pub/category/15992.html.