“For every problem, there is one solution which is simple, neat and wrong.” Except, apparently, for Washington’s medical malpractice crisis, for which there are two solutions that are simple, neat and wrong.
Washington doctors, under the leadership of the Washington State Medical Association, are pushing Initiative 330 as their plan for reforming our malpractice liability mess.
Washington lawyers, led by the Washington State Trial Lawyer Association, support the very different Initiative I-336 as their solution to the mess.
Let’s ask what a pro-patient solution would look like, and then compare our goals with the goals of the doctors and lawyers.
A patient-centered solution does two things. First, a good system reliably nails doctors who are negligent, and pays restitution to patients who have been harmed.
Second, a good system protects doctors from being harassed with frivolous claims and encourages doctors to focus on medicine rather than fears of being sued. A system that achieves both goals will also lower medical costs by reducing malpractice insurance premiums and by cutting back on wasteful defensive medicine.
How do the doctors’ and lawyers’ “reform” bills measure up against these standards?
The doctors’ I-330 has two major provisions: a cap on what you or I can collect if we get hurt, and a sliding-scale limit on contingent fees lawyers can earn when they win a malpractice case. Both provisions are aimed at cutting down the number of mega-awards.
Both provisions are exactly the opposite of what you want if your aim is to reduce medical negligence. Let me share two quick stories.
In response to an earlier column, a very articulate attorney wrote me and said, “Does the medical community actually discipline … wrongdoers? … There are bad lawyers as well as bad doctors. The difference is that the Washington State Bar Association actually gets rid of the offenders, while it is almost impossible to get rid of physicians who cause harm.” Good points, aren’t they?
A couple of weeks ago I handed my father’s doctor one of my columns on malpractice reform. He turned to me with a look of complete fury and said, “They ought to triple punitive awards.” Like many good doctors, my dad’s doctor puts his patients’ care before everything else. He has an insider’s view and can’t stand sloppy and negligent medicine.
Even if I-330 passes, the doctors pushing it might be in for a rude surprise. While the occasional huge award gets a lot of publicity, huge awards just don’t happen all that often. So caps won’t lower total malpractice insurance premiums by very much.
Texas imposed a damage cap in 2003; an even tighter cap than Washington doctors are asking for. Shortly thereafter, GE Medical Protective, the nation’s largest malpractice insurance company, filed papers with the state of Texas stating that the cap reduced their costs by about one penny on the dollar. Saving just a penny on the dollar isn’t going to do the doctors or us any good.
What about I-336, the lawyers’ plan? The trial lawyers want more regulation of the malpractice insurance industry. Hey, insurance companies are already cutting back on selling policies in our state. Adding regulations that limit insurance companies’ profitability makes the situation worse, not better.
The other thing the lawyers want is a “three judgments, you lose your license” rule for doctors. The Medical Association’s response is that this is an attempt to scare doctors into settling out of court to keep judgments off their records.
And further, the number of doctors covered by the largest insurer in Washington who screwed up badly enough to have three judgments against them? Exactly zero.
So the lawyers’ plan does nothing to cut down on frivolous suits and has a phony attempt to reduce medical misdeeds. The doctors’ plan goes the wrong way on reducing negligence and may not save much by cutting litigation either.
What it looks like is that the doctors are focused on cutting the lawyers’ fees and the lawyers are focused on threatening the doctors’ licenses. Neither side seems centered on saving us money, nor on improving our health care.
I find something wrong with this picture. The doctors and lawyers I know spend their work-days helping people. Has the enormous frustration of a malpractice system that doesn’t work led the doctors and lawyers to strike out at each other instead of looking for creative solutions?
It looks as if our elected officials are going to have to find a fix for the malpractice mess with less guidance from the professionals than we might wish.
In the meantime, if you’re asked to sign a petition for either I-330 or I-336, run like the signature collector is infected.
Dick Startz is Castor Professor of Economics and Davis Distinguished Scholar at the University of Washington. He can be reached at econcol@u.washington.edu.
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