Medical Malpractice e-Resource

• Consider a "no-fault" system like workers' compensation that pays to help the injured party regardless of whether a doctor legally was negligent. Florida has set up such a program for birth injuries, and some believe high-risk specialties could try that here.
• Give the state insurance commissioner more power to tightly regulate insurers and make certain medical malpractice insurance rates don't soar or fall so erratically.
• Give more incentives to plaintiffs and defendants to settle legal claims for negligent medical care early on, saving both sides money and helping patients when they are hurting.
• Create patient safety centers to collect data on all bad medical outcomes and incidents in hospitals for the purpose of changing the culture and reducing medical errors overall.
• The ideas were offered during a forum Tuesday evening hosted by The Olympian's editorial board and its publisher, John Winn Miller, and held in the paper's community room.

The event drew the participation of two of the biggest parties in last fall's more than $14 million political battle over two rival initiatives -- the Washington State Medical Association and the Washington State Trial Lawyers Association. Also joining were representatives of the state hospital association, a consumer advocate, Physicians Insurance, AARP, and the Liability Reform Coalition.

High insurance costs have gone from being an obscure financial problem debated in hospital boardrooms to an everyday problem because doctors in specialties such as obstetrics have begun cutting back their services or even relocating.

"We hope The Olympian can be a catalyst in the search for a solution," Miller told participants, adding that after the election voters were "clearly fed up with all the shouting" and casting of villains.

Several participants took Miller up on his offer, some of them outlining solutions that already are a part of House Bill 2292. The measure has passed out of the House Judiciary Committee and could get a vote in the full House as soon as Friday.

It includes elements that deal with insurance reform, such as giving State Insurance Commissioner Mike Kreidler more power to regulate insurers and requiring him to collect more data on closed claims for damages, which then can be used to analyze malpractice trends and learn what really is affecting rates.

HB 2292 also limits the number of expert witnesses each side gets to use in medical malpractice cases, which trial lawyer Reed Schifferman said is a factor in driving up costs for legal claims.

HB 2292 also allows doctors to apologize for bad outcomes without fear of having it used in a lawsuit; and it calls for automatic suspensions of medical licenses for doctors who have three separate serious acts of unprofessional conduct in 10 years.

Kreidler had opposed both initiatives, but his recommendations appeared to come straight out of the trial lawyers' initiative -- including a requirement that hospitals and others who settle malpractice claims make reports of those claims to his office.

Kreidler also wants to review rate increases for malpractice insurance before they take effect.

It was clear early on that the lawyers' and doctors' camps still are prickly with each other and as entrenched in their positions as ever.

Tom Curry, chief executive officer of the state medical association, insisted that caps on damages still are needed, which repeated the main line of the failed I-330 campaign.

"This has been proven to work. We're not plowing new ground here, and it should be considered," he said.

An Olympian report on the matter last year found no clear connection between caps and lower malpractice premiums, however.

Schifferman, of the trial lawyers, said no limit on jury awards is reasonable.

Schifferman offered three ideas: Limit the number of expert witnesses in a lawsuit, who can cost $600 per hour; increase access to settlements; increase the discipline of negligent doctors by allowing a lower "preponderance of evidence" standard of proof that a doctor acted negligently.

Mary Lou Mishrahy of Physicians Insurance, the doctor-owned mutual insurer that is not a for-profit company, said the focus of the debate should shift to improving the safety patients.

"The system has the wrong incentive. ... Most cases of negligence never result in a claim, and therefore result in no compensation," she said. "Yet most claims that are made are without merit. A plaintiff's attorney only needs to settle a few cases in order to afford losses in others. It's all about money, not about patient safety."

Mishrahy said the insurance elements of the House bill are good -- including the requirement that better data be collected by the state insurance commissioner on all claims paid. Only insurers have to report under the law, although HB 2292 would extend that to hospitals.

But the evening's most novel idea, the "no-fault" approach, came from Lauren Moughon of AARP, who acknowledged that it could require some form of caps on damages for injuries. Moughon said that when state Rep. Pat Lantz, D-Gig Harbor, tried to float such an idea for birth injuries a year ago, Lantz was "roundly trashed."

State Sen. Adam Kline, D-Seattle, said a patient's compensation system might work legally, but he preferred having a jury decide how much an injured person is owed based on the facts of an individual case, not a schedule of payouts based on the injury.

"I have a real policy problem with putting a price on people by legislative action," he said.

Leo Greenawalt of the Washington State Hospital Association said the most important part of the puzzle is reducing the mistakes that lead to injured patients. Most are caused by systematic errors, not doctor negligence, he said.

"Changing the culture -- it's the only hope we have," he said. "We can sue ourselves to greatness or we can punish ourselves to greatness -- there's no evidence anywhere that this works."

BY BRAD SHANNON AND ADAM WILSON
THE OLYMPIAN