Washington Voters Reject Malpractice Caps

Voters in this month’s election voted no to a pair of Washington ballot proposals that would have, if passed, reportedly protected patients and removed a burden for doctors when it comes to climbing malpractice insurance premiums.

Initiative 336, mainly sponsored but eventually abandoned by a state lawyers group, was defeated, as was Initiative 330, which was led by a doctors group to limit malpractice damages and liability for healthcare facilities and practitioners.

Still, Washington has not likely seen the end of a tug-of-war that has positioned doctors and their business lobby allies against personal injury lawyers, labor unions and consumer advocates.

The doctors group did find consolation in the defeat of I-336. That measure would have revoked the licenses of doctors who have lost three malpractice judgments within a decade. It would have stiffened the requirements for getting a malpractice case to court. And, it would have created a private supplemental program for healthcare facilities and providers to purchase excess malpractice insurance above private insurance.

I-330 would have allowed injured patients to recover unlimited economic damages–which could be in the millions–for future lost income and all treatment costs; but set a reasonable cap on non-economic damages of $350,000 to $1.05 million. I-330 also would have allowed doctors and patients to choose voluntary arbitration and mediation instead of costly court battles. Finally, I-330 would have limited personal injury lawyers’ fees to a sliding scale, the higher the award, the more money would have gone to the injured patient.

Although both measures were defeated, according to Peter Dunbar, president of the Washington State Medical Association, the battle will likely continue.

“The physicians of Washington State want to be here to serve our communities, and while I-330 did not pass, we will continue to fight to improve patients’ access to medical care in our state,” he continued. “We are disappointed with the relentless misrepresentation of I-330 by the personal injury lawyers. The defeat of I-336 means, on the other hand, that our efforts to build a better healthcare environment can continue.”

In examining why neither measure passed, democratic strategist Cathy Allen told KING-5, “the trial lawyers were able to spend enough money to confuse the issue, and when you confuse, you win.”

Her analysis was largely shared by Tom Curry, CEO of the Washington State Medical Association. He also noted that the strongest opposition to I-330 came from the areas of the state that have not yet experienced the brunt of the access to care crisis.

“If you look at the communities that have the most direct experience with the problem, I-330 is clearly the preferred solution,” Curry said. “Obviously that should give lawmakers an idea of where they should start during the upcoming session.”

In recent years, doctors have reportedly faced dramatic growth in their malpractice premiums. Insurers, hospitals and physicians groups blamed “jackpot” verdicts and have sought to cap some malpractice awards.

State Insurance Com-missioner Mike Kreidler and others instead blame routine cycles in the volatile malpractice insurance market. They say the solution is stabilizing that market–i.e. by providing supplemental insurance to cover exceptional verdicts.