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Doctors and lawyers clash over malpractice

OLYMPIA, Wash. — Can a political slugfest tied to the fortunes of doctors and lawyers inspire voters to choose sides? In Washington this fall, the two influential professions are banking on it.

Both camps and their supporters have poured millions into an initiative contest over how to overhaul the medical malpractice system. The campaign swirling around the dueling ballot measures is sure to be the most expensive of its kind in state history.

A flurry of television and radio ads will likely become an avalanche as Election Day nears. While observers say voters could be confused by all the noise, the state’s chief insurance regulator hopes the public will simply look the other way.

“My hope is both initiatives fail and the Legislature still has the taste to do something,” Insurance Commissioner Mike Kreidler said.

Early polling has indicated that both initiatives could pass, which apparently would not result in immediate conflicts because the two measures don’t overlap.

That happened last year in Florida, where voters approved three separate malpractice measures supported by different interests.

“It’s hard to figure out who the good guys are when they’re spending that much money,” said Todd Donovan, a Western Washington University political scientist who has studied initiatives.

The malpractice measure favored by the Washington Medical Association, Initiative 330, would cap noneconomic, “pain-and-suffering” awards in malpractice trials. The limits range from $350,000 to $1.05 million, depending on the number of defendants and the type of malpractice.

I-330 supporters say that change would help rein in huge “jackpot” jury awards, which they say are driving insurance rate increases that have priced some doctors out of the market.

The initiative also would limit lawyers’ share of damage awards, require many claims to be filed within three years of an injury, and allow doctors to refuse service to patients who don’t waive their right to a trial, except in urgent cases.

Some awards, including pain-and-suffering damages, could be doled out over a period of years if they exceed $50,000. Insurers would be able to halt medical-cost and pain-and-suffering payments for a person once they die, though families could keep receiving awards, I-330 campaigners said.

Opponents of the doctors’ plan argue that capping jury awards for pain and suffering would do little to affect malpractice rates, while unfairly restrict compensation for the most seriously injured.

Those opponents, led by Washington’s trial lawyers, are promoting Initiative 336 as an alternative.

I-336 would set up a state-run supplemental malpractice insurance program, revoke licenses from doctors who lose three malpractice verdicts in 10 years and make details of all malpractice settlements public. It also requires insurers to open financial records and hold hearings if they increase rates by more than 15 percent.

Attorneys, who want to preserve their ability to sue on behalf of injured patients, argue that targeting bad doctors and more public scrutiny of insurance companies will help control malpractice rates.

Kreidler, who supported a third alternative that failed in the 2005 Legislature, says both initiatives are “fatally flawed” because they try to simplify the driving factors behind malpractice costs. Instead, Kreidler favors expanded access to information about malpractice claims.

For instance, a state survey of closed claims involving doctors shows fewer than 50 malpractice payouts of $1 million or more in the past 10 years — contradicting the I-330 message that big malpractice paydays are driving premiums out of reach, he said.

“Why not have, heaven forbid, real information to make decisions on, as opposed to anecdotes?” Kreidler asked.

And while those anecdotes may not be a sound basis for insurance regulation, they certainly can be compelling stories.

One family — Dylan and Christine Malone of Everett — have become front-line messengers for the I-336 campaign. The Malones’ son, Ian, suffered brain damage during a botched delivery and survived only with around-the-clock care from doctors, nurses and his parents. He died last year at the age of 4.

Ian Malone became a national poster child for patient struggles against the medical industry after then-presidential candidate Al Gore highlighted the Malones’ battle to get nursing coverage from an insurer.

Dylan Malone, now a paid spokesman for the campaign, is hoping that his family’s harrowing story will persuade voters to resist I-330 and pass I-336.

“It’s not a doctors-lawyers fight, not exclusively anyway. The patients are in there somewhere,” Malone said.

Meanwhile, in the Skagit County town of Burlington, Dr. Vanoy Smith has stopped delivering babies because of the high cost of malpractice insurance.

Smith attended births for 30 years in his community — he figures he helped about 3,000 people enter the world — before giving up obstetrics entirely because of skyrocketing malpractice insurance.

The high cost of insurance and the fear of lawsuits has affected virtually every facet of the medical profession, Smith said.

“Every doctor practices every day in fear of being sued,” he said. “We are in a crisis.”

The malpractice campaigns should easily break a state record for initiative spending, currently held by the $7 million spent for and against Microsoft billionaire Paul Allen’s successful bid for a new NFL stadium in Seattle.

Reports from the state Public Disclosure Commission show that four initiative committees have already collected more than $9.8 million this year.

Most of that money — more than $5.6 million — has been raised by two committees supporting I-330 and opposing I-336.

Their major donors have been hospitals and clinics, drug manufacturers and the state’s largest malpractice insurer, Physicians Insurance. Doctors’ groups and dozens of individual doctors have also contributed.

Meanwhile, a committee opposing I-330 has raised more than $3.4 million, with large contributions from the Washington State Trial Lawyers Association and individual attorneys, including $450,000 in contributions from members of Seattle’s Luvera Law Firm.

A fourth group, which supports I-336, has gathered more than $756,000, much of it also from the state trial lawyers’ group.

With that much money and a willingness to flood the airwaves and Internet with campaign messages, Washingtonians should be prepared to hear a lot more about malpractice.

“Does that say that voters will be able to tell who the good guys are? They’ll certainly have plenty of information,” Donovan said.

On the Net:

I-330: http://www.yesoni330.org

I-336: http://www.bettersafercare.org

No on I-330: http://ga3.org/campaign/no330

Public Disclosure Commission: http://www.pdc.wa.gov

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