Medical Malpractice

A compromise is reached

A landmark effort to resolve the contentious medical malpractice issue – given a kick by the voters’ strong rebuke last fall of two competing initiatives – culminated in a legislative breakthrough recently when the Senate unanimously passed a bill to improve patient safety and reform the civil justice system.

“I am hopeful that the compromise and hard work that this agreement represents will restore the public’s faith and trust in our ability to work together, and come together to make real progress on a tough and complicated issue – one that we have wrestled with for too many years,” said Sen. Karen Keiser, D-Kent, whose stewardship of House Bill 2292 resulted in strong bipartisan support for the measure. “Any one with a concern about medical care can know that our patient safety practices will improve because of this bill.”

Legislators also praised the efforts of Gov. Chris Gregoire, who, in the wake of voters’ rejection of Initiative 330 and Initiative 336, pulled the previously feuding factions – the trial lawyers and physicians – together to hammer out a compromise agreement that has a strong focus on enhancing patient safety.

“For too long, the loudest debate in our state – and the nation – has centered on malpractice award caps and lawsuits,” said Sen. Pat Thibaudeau, D-Seattle. “There’s a better way to protect patients and doctors, and that is by preventing medical errors. That is one of the critical aims of this bill – to make malpractice litigation a last resort, rather than a first resort.”

The major patient safety provisions of the bill recognize that most medical errors are caused by system errors occurring in medical facilities, not by the mistakes, of individual physicians, according to the 1999 Institute of Medicine study, “To Err is Human,” which documented that nearly 100,000 people a year die from preventable errors in hospitals.

The legislation passed by the Senate on Feb. 22 seeks to reduce medical errors and promote patient in two fundamental ways:

• Protects apologies. The bill encourages physicians and other health care providers to apologize for medical errors by making such statements inadmissible in civil actions if made within 30 days of discovery of the injury. Proponents believe that greater disclosure of medical errors will help patients understand what went wrong, as well as promote a culture where health care providers share information and learn from mistakes.
• Adverse events. The bill also requires health care facilities to report when an “adverse” event or certain kind of medical error occurs. The report of this information will prompt an investigation by the Department of Health – the goal of which is to make improvements in health care systems and build safer procedures.

Other major provisions of the bill focus on the malpractice insurance market and the legal system for settling malpractice claims.

Insurance Provisions:

• Closed claim reporting. The bill requires insurance companies and others to report certain data about medical malpractice claims so that policy makers have better information about the causes of the increases in malpractice rates.
• Cancellation notice. Insurance companies will be required to inform physicians when they cancel a policy and clearly tell them why they were cancelled.
• Prior approval of rates. The bill will give the insurance commissioner greater say over the rates charged by insurance companies.

Civil Liability Reforms:

• Voluntary arbitration. In an effort to allow people harmed by medical errors to seek compensation without going through the court system, the bill establishes a voluntary system of binding arbitration.
• Frivolous claims. The bill also requires attorneys to certify that the suit they are brining is not frivolous.

“As Insurance Commissioner Kreidler said to us the other day, it’s a near certainty that in another decade, we will face another crisis,” said Keiser. “But the next time, we are going to have better tools in the state of Washington for patient safety, for tort reform, for insurance reform. They are going to help moderate what will happen the next time.”