Sorting out medical-malpractice issues

After being pushed and prodded by two years of television ads, two initiative campaigns and two well-funded organizations — first doctors, then lawyers — most voters apparently now think the medical-malpractice insurance situation needs fixing.

Since all things malpractical seem to come in twos, it's probably logical that voters see two solutions: They like both of the dueling initiatives, according to a recent poll.

If that sounds confusing, how about this: Both initiative campaigns claim that a report on a decade's worth of malpractice claims, released yesterday by the state insurance commissioner, is evidence that their side is right.

There's a final twist to this plot. With Democrats controlling both the state House and Senate and the governor's seat, some malpractice-insurance bills might actually be approved this session and signed into law. But because some of the bills address points in the initiatives, they may have to be offered up to voters as "alternatives" to one or the other — or both — of the initiatives.

Such are the signs that this year's effort to retool the medical tort system is presenting unique challenges.

In Olympia, lawmakers are forging ahead, wrestling with a tangle of proposals for many of the complex issues underlying medical malpractice.

Bills moving through the House include straightforward insurance changes as well as issues such as allowing doctors to offer an apology without it being used against them in a lawsuit. Other provisions would protect health-care providers from lawsuits when they turn in their colleagues for unsafe practices, require hospitals to report adverse events to the state and institute a "three strikes, you're out" system for bad doctors.

Lawmakers' apparent plan, at least for now: Pass policies to help fix the problem, then figure out later how they intersect with the initiatives. Under the state constitution, if the Legislature passes an "alternative" to an initiative, it must be submitted to voters. And many of the bills under consideration address issues contained in one or both of the initiatives.

"We don't know quite how to approach that," said Marty Brown, Gov. Christine Gregoire's legislative director, who met Monday with House and Senate committee chairs to try to figure out how to blunt the thorny problem. "We've never had this before."

Meanwhile, in an effort to shed light on what's known — and what's not — about malpractice cases, the state insurance commissioner's office yesterday released a 10-year review of closed malpractice cases. Both sides quickly claimed the report as evidence their side is right.

"It substantiates our point that the cost and severity of lawsuits — and the cost to defend — is going up," said Tom Curry, executive director of the Washington State Medical Association, sponsor of Initiative 330, which would cap noneconomic damage awards and limit lawyers' fees.

The "Yes on Initiative 330" campaign said the report showed that malpractice payouts grew at more than five times the pace of inflation over the decade.

On the other side, supporters of Initiative 336, which requires a mandatory state investigation of doctors who cause three preventable injuries within a decade, claimed the report bolstered their view that doctors are being wrongly alarmist.

Rodney Ray, president of the Washington State Trial Lawyers Association, said that when adjusted for population growth and inflation, the report showed "there has been no significant increase" in medical-malpractice insurance claims or payouts over the decade.

Chief Deputy Insurance Commissioner Mike Watson said he was puzzled that such definitive conclusions were drawn from the closed-case study.

"We thought the report was remarkable for being unremarkable," Watson said. "What we saw over the 10-year period was there was about a 5 percent increase per year in cost, and the medical inflation rate during that time was double that amount."

The report, called the "Medical Malpractice Closed Claim Study," analyzed data on more than 10,000 claims from five insurers, comprising more than 90 percent of the medical-malpractice market for physicians and surgeons. The report showed that from July 1, 1994 through June 30, 2004:

• Average payout per claim increased 4.1 percent per year, from $36,085 to $65,106.

• The number of claims with payouts to plaintiffs increased an average of 4.9 percent per year, from 226 to 301.

• Nearly three-quarters of claims with a payment were negotiated settlements.

• Out of 10,073 total claims, 50 ended with a court verdict for the plaintiff.

The insurance commissioner's office says the study had limitations, many caused by a lack of consistent coding by insurers.

"If this were an academic study, it wouldn't pass peer review, because we didn't have enough data to draw conclusions. I would view with a suspect eye anybody who makes definitive conclusions coming out of this report," Watson said.

Another problem: Because malpractice claims may be closed many years after they're filed, it is nearly impossible to accurately gauge the effect of inflation, said Lisa Smego, one of the authors of the report.

And because the report doesn't break out noneconomic damages (such as pain and suffering) from economic damages (such as lost wages or medical costs), it's difficult to tell whether the doctors' favorite fix, capping noneconomic damages, would have had much effect.

Insurance Commissioner Mike Kreidler says he thinks lawmakers would have an easier time if they had better data to guide them. He's pushing several bills that would require malpractice insurers to report claims, settlements and other information to his office, among other things.

As for the public, last month's Elway Poll showed both initiatives — which take very different approaches to solving the malpractice problem — have public support: 66 percent said they were for I-336, which would also require notices and hearings for insurance-rate increases and establish a supplemental malpractice-insurance program. But 58 percent said they favor I-330, which caps noneconomic damage awards at $350,000.

And to make it even more confusing: Among those polled who said they were generally inclined to side with doctors, a substantial majority liked the lawyers' initiative, I-336.

Carol M. Ostrom: 206-464-2249 or costrom@seattletimes.com