Tort reform ballot initiatives face off in Washington state
■ Doctors seek a damage cap, and lawyers want a three-strikes rule.
By Mike Norbut — Posted Oct. 10, 2005
Washington physicians and trial attorneys are engaged in a battle for votes in a referendum campaign that already has become the most expensive in the state's history.
Each side has its own ballot initiative, advertisements, supportive coalitions and Web sites. The physicians' initiative has already survived a challenge in the state Supreme Court.
The campaigns are trading jabs as well. Physicians say the initiative backed by trial attorneys is nothing more than a retaliatory measure that has no beneficial impact for patients. Trial attorneys, meanwhile, say the physician-backed measure would favor insurance companies over patient rights.
Committees for both sides have raised nearly $9 million collectively, with more expected before the Nov. 8 election.
"There will probably be more than $10 million spent, easily, between both sides combined," said Tom Curry, executive director of the Washington State Medical Assn., which has led the charge on I-330, the referendum backed by physicians, hospitals and nurses across the state.
The stakes are high. Washington physicians are asking voters to enact sweeping tort reform measures, headlined by a $350,000 cap on noneconomic damages in medical liability cases. They hope the package would ease the pressure doctors are feeling from rising insurance premiums.
Washington is one of 20 states the AMA has declared to be in crisis because high liability insurance premiums are forcing doctors to retire early, avoid high-risk procedures or move to a different state. Communities across the state are reporting physician shortages in obstetrics and other high-risk specialties. Even large metropolitan areas have experienced crises in trauma care availability.
"I-330 is of critical importance," said neurologist Ken Isaacs, MD, then president of the Washington State Medical Assn. "The current environment has already had a substantial effect on access to care for patients."
In addition to the cap, which would not increase with inflation, the physician initiative aims to limit contingency fees for attorneys, set up a payment schedule for awards greater than $50,000, and change joint and several liability laws so defendants are not held responsible for more than their share of fault. The proposal also would require plaintiffs to give 90 days notice before filing a claim, and it would allow lawsuits to be filed only within three years of the alleged incident.
Meanwhile, doctors are working to defeat I-336, the referendum they say was added to the ballot by trial attorneys in retaliation for their initiative.
The attorneys' measure seeks to establish a state-run supplemental liability insurance program and a three-strikes rule for physicians, which would call for a doctor's license to be revoked after three jury verdicts against him or her in a 10-year period. The initiative also would require attorneys to submit, within 120 days of filing a lawsuit, a certificate of merit stating they have consulted an expert who "believes on a more probable than not basis" that the claim is not frivolous. A lawyer could be sanctioned if a court decides the lawsuit is frivolous, according to the proposed referendum.
"I-336 is designed to be the solution to the issue of premiums," said Jack Connelly, president of the Washington State Trial Lawyers Assn. "It has patient safety provisions, it deals with bad doctors, and it deals with the issue of frivolous lawsuits."
The WSMA's Curry called the initiative backed by trial attorneys "a fraud" and pointed to the proposed three-strikes rule as an example. Rather than targeting physicians who remain in practice despite many liability verdicts, the system would frighten good doctors faced with liability claims to settle them rather than risk going to trial, he said.
"This is not about throwing out bad doctors," Curry said. "This is about extorting money out of good doctors."
Trial lawyers are equally as critical of the physicians' referendum. Connelly argued that it will not stem the rise of insurance premiums, but it will reduce doctor accountability.
Supporters of the physician-backed measure, however, point to Texas as an example of a referendum that has produced the desired effect. Since voters approved a measure in 2003 that set a $250,000 cap on noneconomic damages, liability premiums in Texas have declined and the AMA has removed the state from its list of crisis states.
Voters in Florida, Nevada and Wyoming approved physician-backed measures last year, although only Nevada's package included a $350,000 cap on noneconomic damages.
While organizers in both Washington camps watched campaigns in other states closely, they were surprised by the intensity of their political struggle.
It got to this point because prior attempts by physicians and other tort reform advocates to push a bill through the state Legislature died in a House of Representatives committee, Curry said. "We felt the only way to break the deadlock was to use the initiative process," he said.
The Seattle Times reported the previous spending record for a referendum campaign was about $7 million, and that was regarding a taxpayer-financed stadium for the Seattle Seahawks football team. The tort reform debate will certainly eclipse that, based on money already collected.
The physician-supported measure already has withstood a legal challenge brought by families involved in liability claims.
In a unanimous decision last month, however, the state's Supreme Court dismissed the challenge, saying the initiative did not exceed the scope of its legislative power, making a review of the language prior to the election inappropriate.
Either referendum, if approved, would go into effect Jan. 1, although both sides have indicated it's likely their opponent's measure would face a court challenge if enacted.