Distort Reform

"Frivolous suits by aggressive personal-injury lawyers are forcing medical liability premiums up and good doctors out," proclaims literature put out by the campaign for Initiative 330, which is on the Nov. 8 ballot. It's a high-stakes, bitterly fought measure that mirrors a sweep of proposed legislation around the country and at the federal level. Here, the initiative proposes to set a cap of $350,000 on malpractice awards for noneconomic damages, per liable health care provider or institution. I-330 also would enable injured parties to receive no more than $1,050,000 in all for such damages.

But where are these frivolous suits producing excessive, irrational payouts?

Tom Curry, executive director of the Washington State Medical Association and a spokesperson for the I-330 campaign, refers to a study published in The New England Journal of Medicine that suggests that many litigated awards are not linked to true negligence. But are there any specific Washington cases? Curry recalls a Snohomish County lawsuit that in April resulted in one of the largest malpractice jury awards in state history—$17.1 million. "I don't know the specifics," Curry concedes. "But I would characterize a $17 million judgment as excessive on the face of it."

Let's look at the specifics of the Snohomish County Superior Court case Lafferty v. Edmonds Family Medicine Clinic and Stevens Memorial Hospital. In 1998, a woman who was almost due to give birth became concerned because she couldn't feel her baby moving. Her doctor said that she referred the woman, Tami Lafferty, to Stevens Hospital in Edmonds for a type of diagnostic ultrasound called a biophysical profile. A biophysical profile requires the ultrasound technician, or sonographer, to check for three gross body movements in a 30-minute period. There is no record of a biophysical profile being performed. Instead, there is one of what's called a complete OB ultrasound. Dr. Arthur Castagno, Stevens' director of radiology, describes the OB ultrasound as a better test, measuring all of the baby's body parts. Although he wasn't there at the time, he says he's looked at the still pictures from the ultrasound and they "show that the fetus changed position" during the test. But he concedes that the OB ultrasound does not specifically require the sonographer to look for three body movements, and there is no evidence of such repeated movement during that examination.

What's more, the sonographer had previously been the subject of 30 written complaints about her work, according to Lafferty's lawyers. A disciplinary action report the month before Lafferty's ultrasound, entered into the trial record, notes that the sonographer "performed an OB exam instead of renal." That same month, another hospital report notes that the sonographer failed to perform the very same test, the biophysical profile, that was at issue in the Lafferty case. The hospital put the sonographer, who normally worked nights, on a week of day shifts for additional supervision, according to Lafferty's lawyers and a trial document. But she was back working at night, unsupervised, when Lafferty came in.

With no red flags raised from the hospital test, Lafferty didn't see a doctor again for two days. When she did, the doctor sent her to the hospital, where her baby's rapidly dropping heart rate became apparent. The baby was suffering from a condition that had him hemorrhaging blood inside the womb. In an emergency C-section, he was essentially stillborn. Doctors resuscitated him, but, having spent 16 minutes without oxygen, the baby suffered brain and neurological damage that has left him, now a 6-year-old named Benjamin, unable to move his limbs or talk or see properly or receive food other than from a feeding tube. His mother, all these years later, has to wake up several times a night to care for him.

Facing an appeal, Lafferty settled with the Edmonds Family Medicine clinic and its doctors after the trial for an undisclosed amount. Stevens Hospital is still appealing its 80 percent share of the jury award.

You can argue about the fine points of this case, but frivolous it is not. Even if I-330 backers could cite a recent malpractice award in Washington that, upon scrutiny, is excessive, there are several other problems with the measure's proposal to cap awards. One is the fact that big jury awards don't even seem to be the reason medical liability premiums have gone up.

The push for caps has a lot of resonance with doctors. With their donations, as well as those from health care institutions and insurance companies, I-330 has raised $4.8 million to date. The No on I-330 campaign has accumulated a comparatively paltry $745,000, mostly from attorneys. This big money fight might marginalize a rival medical malpractice initiative on the ballot, I-336. That's a shame, because I-336 is an intriguing proposal to weed out bad doctors who are inexplicably allowed to engender malpractice cases time and time again.

The reason caps are so appealing is because many doctors believe that out-of-control litigation payments are responsible for sharp increases in their malpractice insurance premiums. Those premium increases are real. A few years ago, for instance, Puyallup family practice physician Edward Pullen saw his insurance premiums more than triple from $7,500 annually to $25,000. That rate took into account Pullen's obstetrical work, one of the highest-risk areas in medicine. "It was really crazy," Pullen says, especially since he was delivering only about 20 babies a year. And so, like many family physicians and some obstetrician-gynecologists around the state, he simply stopped delivering babies. "It's one of the joys of family medicine I miss," he says.