Washington Business Ballot Initiative Harms Seriously Injured Malpractice Victims, Will Not Lower Medical Malpractice Insurance Rates

Sept. 7, 2005

Washington Business Ballot Initiative Harms Seriously Injured Malpractice Victims, Will Not Lower Medical Malpractice Insurance Rates

Statement of Joan Claybrook, President, Public Citizen

Across the country, the drive to lower medical malpractice rates has spawned all manner of specious “solutions,” many amounting to nothing more than a push to punish patients. But nowhere is a proposed punishment as draconian as what we see here in Washington state.

When doctors commit egregious acts – permanently disabling the elderly, causing infants to be born brain-dead, operating on the wrong body part – an appropriate response is in order. Here, though, the response has been completely off the mark: Doctors and insurers want not only to avoid accountability by limiting patients’ ability to recover damages for medical mistakes, but they also want to force patients to give up their right to go to court – the only real leverage they have.

But curtailing access to the courts will do nothing to lower malpractice rates. New data Public Citizen is releasing today show that industry claims that rising malpractice insurance rates are caused by lawsuits and the legal system is a myth. In fact, both the number and dollar amount of medical malpractice payments made to patients on behalf of Washington doctors have declined significantly.

Many more claims are being made about this issue. Here are a few of the myths and actual facts outlined in our report, Fewer Lawsuits and More Doctors: The Myths of Washington State’s Medical Malpractice “Crisis”:

Myth: The legal system is out of control, and so are juries. That is why malpractice insurance rates are increasing.

Fact: The number of medical malpractice cases filed in Washington has dropped by nearly one-quarter over the last decade. The total amount doctors paid out in medical malpractice damages is down 42 percent since 1997.

Myth: Doctors are being driven out of Washington, particularly those in certain specialties.

Fact: Overall, the number of practicing physicians here has grown 20 percent in the past decade – that’s over and above the population increase. There are 50 percent more emergency room doctors here today than 10 years ago, the number of internists is up nearly 30 percent and the number of obstetricians is up 20 percent.

Myth: Frivolous suits are forcing medical liability premiums up and good doctors out.

Fact: In Washington, 85 percent of the total money paid out in malpractice awards goes to those who are most seriously injured by doctor negligence. We’re talking about people who have either died or will suffer for the rest of their lives with serious permanent injuries such as brain damage, spinal cord injuries, paralysis and gross disfigurement.

This is critical information, because voters in November will face two ballot measures relating to medical malpractice. The draconian Initiative 330 would generally cap non-economic damages at $350,000, which would harm those who are most injured. Initiative 330 also would shorten the time limit patients have to file a case, limit patients’ attorney fees – but not the fees of attorneys for the insurance company and doctor – and require advance notice of lawsuits.

The initiative also would dramatically strengthen the ability of health care providers to enforce the use of mandatory arbitration, which denies people the right to go to court, by encouraging victims to sign away their right to go to court, using arbitration instead.

If anyone thinks that this proposal – which is backed by big businesses, insurance companies, HMOs and pharmaceutical companies – will make malpractice insurers lower their rates, they are seriously misguided. In fact, the opposite has occurred in many states where rates have increased after legislation passed, such as Texas and Nevada. This bad initiative doesn’t even mention insurance rates. That’s right – not a word in the initiative mentions rates that the insurance industry itself sets. Those who back this initiative, particularly the insurance industry, which is raking in comfortable profits, are using their own high malpractice rates as an excuse to enact a horribly unfair policy.

The other ballot measure, however, would help address the malpractice problem. One of the biggest problems that Public Citizen has uncovered is that a small fraction of Washington doctors commit a large amount of the malpractice. What’s more, they aren’t being disciplined for it.

One Washington doctor has racked up eight malpractice payouts in the past 10 years for such things as performing surgery on the wrong body part, performing an unnecessary surgical procedure and improperly administering medication. The doctor has not been disciplined. Another Washington doctor has had seven malpractice payouts between 1992 and 2003 for such things as providing the wrong treatment and poor surgical performance. Again, this doctor has not been disciplined. The list goes on.

In fact, just 4 percent of Washington doctors are responsible for nearly half (48 percent) of all malpractice payouts between 1990 and 2005, according to our analysis of National Practitioner Data Bank information. Yet little has been done to stop these “repeat offender” doctors. Just stopping this 4 percent could reduce malpractice payouts dramatically and likely would bring a large reduction in premiums.

Doctor error truly is a problem. Thousands of Americans die or suffer major injuries each year at the hands of medical negligence or error. A landmark 1999 study by the Institute of Medicine estimated that as many as 98,000 patients die each year following preventable medical errors in hospitals. This is just errors in hospitals; it does not include errors in doctors’ offices and other venues. Based on population, Washington state’s share of this national death toll ranges from 930 to 2,070.

It is shocking that doctors have had rallies and protests about insurance rates when the doctors control much of the malpractice insurance themselves through a doctor-owned insurance company, and this company recently has been ordered to refund $2.25 million in overcharges. The complaints doctors are making to the public are untrue. Instead of attacking victims, the doctors should clean up their own house, protecting patients and their own pocketbooks at the same time.

The other ballot measure, Initiative 336, would require notices and hearings before insurers hike malpractice rates. It would require license revocation proceedings for a doctor after three malpractice incidents. It would add consumer health care advocates to the state medical quality assurance commission and would give patients and families access to adverse medical incident reports.

There is a lot more to this issue than numbers. You will hear today about lives that have been forever and dramatically altered by bad doctors – by repeat offender doctors. Linda Guile’s spinal cord was severed by a doctor who has severed spinal cords in other patients. He now has injured patients in three states. You will hear from her husband, Bob.

Capping damages will do nothing to lower insurance rates. It will only further harm people like Linda and others who have been so severely injured by malpractice.

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 To read Public Citizen’s full report, click here.

To read the press release, click here.