Both sides of the tort reform debate agree on one thing: Improving patient safety is critical. While those who oppose tort reform cite highly suspect data that greatly exaggerates the number of patients harmed by negligence, the point remains: one preventable death or injury is one too many.
This belief is what has spurred my efforts as a member of the board of the National Patient Safety Foundation to find ways to make our health-care system safer and to rapidly identify and correct potentially dangerous situations.
I’m also a dedicated proponent of the 100,000 Lives Campaign, a national effort to promote patient safety in hospitals. (It should be noted that Washington state is the only large state that can boast 100 percent participation in the program by its local hospitals, something we can all be proud of.)
If I believed Initiative 336 moved us one inch closer to our goal of total patient safety, I would endorse it in a heartbeat. Unfortunately, regardless of intent, this initiative’s real effect will actually be to force us backwards.
Simply put, I-336 will place patients in Washington at risk.
The most significant harm will be done by the provisions of I-336 that make peer-review records discoverable by trial lawyers. Peer review is one of the most effective tools physicians, clinics and hospitals have to identify ways to improve patient safety. Many people are under the impression that peer review only occurs after a patient has already been hurt; nothing could be further from the truth. Many, many important patient safety improvements have been made as the result of reviewing a procedure that did not cause any harm to the patient but did expose mistakes or system-errors that could cause harm in the future if left uncorrected.
This process relies on open, unguarded discourse, and the only way to ensure these conditions is to keep it confidential. No one is going to raise their hand and say “I think I could’ve done this better” or “This is what I did, was it a mistake?” if they know their words could be read back to them in court someday.
We know I-336 will destroy peer-review here because a similar measure had precisely that effect when passed in Florida in 2004. Many hospitals simply shut down their peer review programs because, stripped of confidentiality, they were ineffective at improving patient safety (but very effective at exposing the hospital to lawsuits by personal injury lawyers trolling for cases).
Other elements of I-336 may not directly harm patient safety, but they will not improve it in any measurable way.
For example, no one wants to see bad physicians weeded out more than good physicians; unprofessional doctors drive up everyone’s costs, hurt the profession’s reputation, and worst of all, cause harm to our patients. But I-336’s “three strikes” rule is nothing more than a gimmicky sound bite.
Our state’s largest medical liability insurer, the doctor-owned mutual, Physicians Insurance, writes policies for about 5,200 doctors. Not a single one of them has lost three medical malpractice verdicts in 10 years (the scenario in which I-336 would require the disciplinary body to revoke a physician’s license). So, what will be the real effect of this rule? It will push good physicians in high-risk specialties (areas of medicine such as obstetrics, emergency medicine and trauma care surgery) to settle cases, even those without merit, more quickly (and for higher amounts) which will only encourage personal injury lawyers to file more and more suits.
I-336’s addition of two public members to the Medical Quality Assurance Commission is no panacea. There are already four public members on the commission, appointed by the governor – two of whom are lawyers by training – and, in any case, adding two people to a 19-person commission does nothing to address the real issue. The commission needs adequate staff and state attorneys general to take action on the complaints it reviews, not more members.
The total effect of I-336 will be to discourage physicians from practicing in our state, especially the ones we so badly need to staff our emergency rooms, deliver our babies and perform life-saving surgeries. That will only hurt patients.
Please join me in supporting patient safety by voting no on I-336.
Matthew Rice is a physician who lives in Gig Harbor and practices in Federal Way. He is also a member of the National Patient Safety Foudation’s board of directors. Dr. Rice received an M.D. from the Pennsylvania State University School of Medicine in 1977 and a J.D. from Seattle University in 1988.
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