A coalition of insurance, tobacco and drug companies wants to trade your rights for their wrongs. They are demanding legislation that will strip Washington citizens of their constitutional right to a jury trial. For victims of preventable medical injuries, the result would be lobbyists and politicians deciding — in advance, without hearing any evidence — what their injuries are worth.
The business lobbyists say ordinary citizens can’t be trusted to tell the difference between a doctor’s bad action (negligence) and a bad outcome. They want to relieve juries of the responsibility for deciding medical malpractice claims. Yet we trust juries to make much more complex decisions, including the choice of life or death in a case of capital punishment.
Doctors support the legislation because they want relief from rising insurance premiums. They say there has been an "explosion" in medical malpractice claims, but I haven’t been able to find one. In fact, over the past decade malpractice payouts in Washington state have kept level with inflation, and even fell between 2001 and 2002.
The problem is, what big business is proposing hasn’t worked anywhere it’s been tried. In Florida — which last year passed a similar bill — malpractice insurers are asking for rate increases as high as 60 percent.
So why are premiums skyrocketing?
Over the past few years, insurers made bad investment choices. Stocks dropped, insurers raised premiums and started blaming their financial losses on everyone else — on the justice system, on juries, and especially on ordinary people like my firm’s clients, who will spend the rest of their lives in hospital beds or whose family members have died as a result of negligence. Yet insurers control rates through their underwriting practices. If they had applied their reserves responsibly, they could have leveled out the peaks and valleys and kept rates stable.
The proposed legislation would create a new class of individuals with special rights. It gives legal protections to health-care professionals and hospitals that cause preventable life-threatening injuries, as well as to companies that sell defective products, government agencies that are negligent, and companies like Olympic Pipeline that ignore safety guidelines. Rather than supporting initiatives that would make health care safer for patients, the big-business lobby wants to give health-care providers and institutions free rein to act carelessly in a wide range of situations, without ever having to take proper responsibility for their actions or the harm they cause. This sends exactly the wrong message about the need to stop the hundreds of thousands of preventable injuries or deaths that occur every year as a result of medical negligence.
The proposed bill also dismantles the delicate balance that makes our legal system fair. We already have a requirement that patients have medical evidence that their injuries were caused by a doctor’s bad actions, not just a bad outcome. I always obtain medical opinions that malpractice has occurred before I file a lawsuit. Lawyers who bring frivolous lawsuits already run the risk of being fined by the court, and rightly so.
How easy is it for patients to win a medical malpractice case in Washington? In the past seven years, there’s been only one verdict against a doctor in Kitsap County, and none in Whatcom County. Other regions of our state have similar stories to tell.
The proposed legislation would severely limit juries’ rights to award fair damages, taking away the most effective tool we have to hold doctors accountable for their actions. A relative handful of doctors are responsible for the bulk of malpractice claims. Many of these have had multiple claims filed, and yet no disciplinary action has been taken by the Medical Quality Assurance Commission. So it falls on the shoulders of ordinary citizens — those who have already been harmed — to help oversee the medical profession and prevent harm to others.
Still, the business lobbyists, supported by some of the biggest money in politics, say they will force lawmakers to choose between giving in to corporate demands and representing the people of their districts. Any legislator with the courage to stand up for the rights of injured victims is being threatened with defeat at the polls next November. That’s just plain wrong.
Todd Nichols is an attorney with the firm of Cogdill Nichols Rein Wartelle in Everett.
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