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When compared to the nation as a whole, Washington State carries relatively affordable
medical malpractice insurance rates. OB/Gyns in cities like Chicago and Miami pay
as much as three times the amount in annual premium as those in the Evergreen State.
Yet, when the state’s physicians are compared to their neighboring counterparts
in Idaho and Oregon, those same physicians are paying between $10,000 and $20,000
more for the same coverage. For decades, supporters of tort reform in Washington
have claimed this premium disparity threatens the state's ability to retain quality
physicians and maintain its citizens’ access to healthcare.
In the early 1980s, proponents of tort reform began warning excessive costs and
an unfair legal system threatened the ability of physicians to practice medicine,
potentially leaving patients without access to needed care. The reformers pointed
to doctors limiting vital services such as obstetrics, trauma care and brain surgery
because of the fear of being sued and the uncontrolled costs of the legal system.
They also blamed the ever-increasing cost of healthcare on a legal system they believed
was overly influenced by personal injury attorneys who were receiving contingent
compensation of up to 50 percent of a verdict plus expenses, ultimately leaving
little for the injured party.
In the summer of 1986, the state legislature enacted the Washington Tort Reform
Act, a comprehensive tort reform package intended to stabilize the costs of medical
malpractice insurance. The legislation included a $350,000 cap on non-economic damages,
applying regardless of the number of health professionals, providers or institutions
involved. Additionally, the act placed a $700,000 limit on total combined civil
liability for non-economic damages caused by persons other than healthcare professionals.
Other tenets of the 1986 Washington Tort Reform Act included contingent attorney
fees could not exceed 40 percent of the first $50,000 recovered, 33 percent of the
next $50,000, 25 percent of the following $500,000 recovered and 15 percent of any
recovery exceeding $600,000; placed a statute of limitation on actions; required
giving a potential defendant at least 90 days' notice prior to filing a lawsuit;
and required the action to initially undergo a mediation process.
In 2003, the Washington Supreme Court declared the Tort reform Act unconstitutional,
ruling that it violated a citizen's constitutional right to trial by jury. The court
found that the determination of damages, especially non-economic damages, is a factual
issue within the province of the jury's fact-finding role.
In response, the pro-tort-reform movement spent nearly $7 million to inform the
public of their belief the state’s access to care was being threatened and get Initiative
330 (I-330) on the 2005 ballot. The I-330 proposal would have limited lawyers fees
in medical malpractice cases and allow physicians to require would-be patients to
sign away their rights to sue for claims of malpractice. I-330 would have also restricted
judgments against insurers, treatment facilities, therapists, social workers, group
homes and other industries. After receiving support from the more rural counties
where citizens did feel there was a real access-to-care problem, the ballot initiative
did not pass statewide.
The following year, the Washington State Legislature passed 2SHB 2292, a large,
but relatively inconsequential, healthcare liability reform measure that was not
opposed by either physicians or trial lawyers. The 2006 bill contained provisions
that included: allowing doctors to apologize for adverse outcomes without the apology
being admissible in court; requiring a medical facility to notify the Department
of Health within 48 hours of confirmation that an adverse event has occurred and
a subsequent report of the adverse event be made available within 45 days; requiring
that in medical negligence actions involving the claim of a breach of standard of
care the plaintiff file a certificate of merit from a qualified top-rated stating there
is a reasonable probability that the defendant's conduct did not meet the required
standard of care based on the information known at the time; and establishing a
new voluntary arbitration system for disputes involving alleged professional negligence
in the provision of healthcare where all parties have agreed to submit the dispute
to voluntary arbitration.
In 2008, the physicians of Washington did register a significant victory when they
stalled to a defeat Washington House Bill 1873 (HB 1873), which would have made
a number of changes to state statutes that govern wrongful death and survival causes
of action, particularly in the areas of expanding areas of who could sue and the
damages they could recover. It would have greatly increased the rewards plaintiffs
and their lawyers could have received in wrongful death suits, especially from government
agencies at the state and local levels.
Currently, medical malpractice insurance premiums seem to be softening in the state
of Washington. In 2008, two of the three major writers of medical liability coverage
in the state reduced their rates by an average of 10 percent, and in the two years
previous, premiums remained flat. Nevertheless, the pro-tort-reform movement in
the state of Washington has vowed to continue the fight to pass meaningful liability
reform, including limitations on non-economic damages; evidence of collateral source
payments; a sliding scale of attorney contingency fees; statute of repose/limitations
reform; binding arbitration; mandatory mediation as well as joint and several liability
reform.
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