Doctors so far go one for two in state tort reform battles

Washington voters rejected an initiative that would have capped noneconomic damages, but the Wisconsin Senate approved a bill limiting the amount plaintiffs can receive.

By Mike Norbut — Posted Nov. 28, 2005

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Tort reform votes in two states earlier this month yielded mixed results for physicians. Voters rebuffed a physician-backed measure in Washington. Meanwhile, the Wisconsin Senate passed legislation supported by doctors, although signature by the governor is doubtful.

In what was the most expensive referendum battle in Washington history, both the physician initiative and a measure backed by trial attorneys failed by significant margins. The physicians' proposal, I-330, which was headlined by a $350,000 cap on noneconomic damages, lost 55% to 45%. The measure backed by trial attorneys, I-336, was voted down 59% to 41%.

The two campaigns raised more than $14 million between them. The previous spending record for an initiative campaign was about $7 million, and that was regarding a taxpayer-financed stadium for the Seattle Seahawks football team.

In addition to the noneconomic damages cap, physicians sought to limit attorneys' contingency fees and change joint and several liability laws so defendants are not held responsible for more than their share of fault.

The attorneys' measure included a provision that called for a doctor's license to be revoked after three jury verdicts against him or her over 10 years. It also would have required lawyers who filed suit to file a certificate of merit from an expert who believed the claim was not frivolous.

"Physicians are disappointed that [I-330] did not pass," said Tom Curry, executive director of the Washington State Medical Assn. "At the same time, it carried 26 of Washington's 39 counties. About 550,000 people voted for their doctor and for access to care."

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.

But trial lawyers argued that the physician-backed measure would have reduced doctor accountability. Defeating the physicians' referendum was more important than seeing their own measure approved, said Jack Connelly, president of the Washington State Trial Lawyers Assn. "Given the amount of money spent by people trying to push I-330, we had to put our resources toward opposing 330 rather than pushing [I-336]," he said.

The voter rejection of both initiatives puts tort reform back in the state Legislature's lap. Lawmakers have failed in the past to pass substantive reform that all groups could support.

"The access problem will not get better on its own," Curry said.

Wisconsin Senate passes bill

In Wisconsin, doctors won a victory in their effort to re-establish noneconomic damage caps in their state. The Wisconsin Senate voted 19-14 last month in favor of a bill that would create a two-tiered system of caps. Noneconomic damages for cases involving children younger than 18 would be limited to $550,000, while the cap for adults would be set at $450,000 under the legislation. The State Assembly approved the measure just a few weeks before.

But the success may be short-lived, as Wisconsin Gov. Jim Doyle is expected to veto the bill because of constitutionality questions. The state's Supreme Court recently struck down the state's long-standing noneconomic damages cap, which stood at $445,775. "It would be better to go back and develop something that would have a chance of being upheld," said the governor's spokesman Dan Leistikow.

While medical society officials acknowledged the veto speculation, they commended the Legislature for acting quickly and encouraged Doyle to sign the bill. If Doyle does veto the measure, doctors' quest for a new cap could take them down several different avenues, said Susan Turney, MD, executive vice president and CEO of the Wisconsin Medical Society.

"A revised cap could satisfy all parties, including the governor; otherwise, Wisconsin may have to consider a constitutional amendment," Dr. Turney said. "All options remain open as we work to assure that Wisconsin patients have access to the medical care they need and that doctors remain able to provide such care."

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