Washington State Malpractice Reform Update

W. Hugh Maloney, MD, MHA, FACP, governor-elect for the Washington State Chapter and president-elect of the Washington State Medical Association (WSMA), discussed the Washington State experience with the “Yes on I-330/No on I-336 Campaign” for tort reform in the 2005 election. The result of the campaign was mixed for Washington State physicians.

He said that the campaign for reform started with four elements:

  • Research on how to drive the message and strategy and how to shape campaign elements;

  • A strong, broad base;

  • A solid campaign plan and team; and

  • The discipline and funding to execute the plan.

Dr. Maloney said that Initiative 330 (I-330) combined elements of the WSMA and coalition priorities. He said that the most important thing to physicians was a cap non-economic damages, limits on attorneys’ contingency fees, and the ability to make the juries aware of other payments.

He said that an alternate initiative (I-336) submitted by the trail lawyers included three elements: insurance commissioner notice for rate increases over 15%, state-run secondary insurer, and MQAC (Medical Quality Assurance Commission) revocation of a physician’s license if there are three judgments in ten years.

Dr. Maloney said that they chose to use the initiative over the legislative process even though an initiative is an “awful” tool (only to be used if you have no alternative) because it is the only way Washington State residents can make their wishes known.

He said several factors influenced the decision to use an initiative rather than legislation:

  • Numerous discussions with the legislature in the 2003 and 2004 sessions ended in a stalemate.

  • Discussions with the past and current Governor, Attorney General, and the Office of Insurance Commissioner brought no results.

  • Tight alliance between the trial lawyers and the Democratic Party.

  • WSMA State House of Delegates called for a fix to the problem.

  • WSMA organizational and business plan identified tort reform as a priority.

  • WSMA Board of Trustees called for action on tort reform and steps to break the deadlock.

Dr. Maloney said that an initiative to the legislature ensures that the initiative will either be passed by the legislature or go to the people on the November 2005 ballot. The coalition strategy was “If we could get to the patients, we could win.”

He said that although I-330 failed, he said that the WSMA did the right things: conducted research; hired professionals; raised $7.5 million between the physicians, hospitals, insurance and pharmaceutical companies; created a coalition that had not been formed before; stayed on message, and defeated I-336 ( the trial lawyer sponsored initiative).

Since the election, he said that they went back to the legislature and spoke to the new Governor. Over the past winter they have had extensive negotiations with the Governor.

He identified some of the positives from the campaign as:

  • Defeated I-336

  • 783,000 patients voted to support their physicians and they are potential jurors, (so they have changed the jury pool)

  • Voters made the connection between the tort system and access. He believes that they were effective in doing this in certain parts of the state.

  • Expect self moderation by juries – the WSMA has seen evidence that the curve for pay out is flattening.

  • Develop political credibility for the WSMA and the physicians – showed that they can raise a lot of money. The WSMA gave its support to those who advanced the cause of tort reform and withheld its support from those that didn’t. It is a risky strategy that the WSMA believes will pay off for them over the long run.

He described the events that shaped the campaign:

  • They were able to make the connection between personal injury lawyers and I-336 which helped to defeat I-336. He said that physicians were willing to lead a difficult, nasty, dirty, aggressive campaign against the trial lawyers.

  • The 50+ voters flipped (Done in by AARP). The WSMA had an understanding with AARP that they would stay neutral during the campaign but unfortunately AARP Executive Director had been a past representative of the Democratic Party and advised them otherwise.

  • The two state nurses associations (in the middle of a membership drive) also flipped and said that tort reform was not good for patients.

  • Newspaper urged “No/No” vote on the two initiatives. The newspaper could not endorse the physician component of I-330 and in some instances were on the attorneys’ side.

  • Had greater than expected turnout for an off-year.

  • Initiative was far too complex. Dr. Maloney said that if they could do it again they would pare it down and be more focused.

  • Had a tale of two states – Eastern part of the state is rural conservative and voted “yes” on I-330; the western part is urban, democratic, liberal, and voted “no” on I-330. He noted that 23 of the 39 counties voted “yes” and only 16 voted “no” which gives them some clout when they visit individual legislators of the counties that voted yes. He said that the statewide breakdown of the vote on the I-336 (trial attorney initiative) proved that if they had not educated the state on I-336 they would have lost on that initiative too.

Since the November elections, Washington State has passed tort reform bill (HB 2292), which the WSMA negotiated. He said that the recently passed bill is not true tort reform. They were told in their negotiations with the Governor that they would come back to caps on attorneys’ fee and caps on pain and suffering another time, so they negotiated on the other components of I-330. He said that this was a bad bill that was made better by their involvement. He said that the bill was going to pass no matter what because the Governor, Senate, House, Insurance Commissioner and State Supreme Court were run by Democrats.

Negotiations over HB 2292 results were:

Docs got:

  • Apologies (within 30 days) are not discoverable

  • Immunity for good faith reporting.

  • Requirement that collateral source payments be revealed

  • Arbitration for claims of less than $1 million.

Attorneys lost:

  • Three strikes

  • Stacking the plaintiff’s side –expert witnesses

  • No joint and several liability

In conclusion, he said that physicians have an opportunity for another day. The WSMA will recast the campaign and focus on patient safety - which is very important because the public linked patient safety and bad doctors; quality; reform medical discipline – and consider medical court administrative reform; and liability reform.

View the PowerPoint Presentation.