Losing the Patient

The so-called "compromise bill" on medical malpractice brokered last week by Gov. Christine Gregoire was a political coup that showed the governor's willingness to walk into the lion's den, which is what any conversation on malpractice between doctors and lawyers resembles. But a compromise? Not exactly. Left almost completely out of the equation were significant reforms on patient safety and doctor discipline, the goals behind one of the dueling malpractice initiatives on the ballot last November, both of which failed.

All the touted provisions of the bill favor doctors most, even if they don't acquire the holy grail advanced by defeated Initiative 330: caps on monetary jury awards. Under the compromise bill, doctors can apologize without having it held against them in court, juries can be informed as to whether injured patients have already been compensated by another source, both parties must enter into mediation before trial, and malpractice claims must have merit in the eyes of a third-party expert.

In contrast, there wasn't much in the bill that patient advocates could claim as theirs, never mind anything close to the patient-safety steps contained in failed Initiative 336. That ballot measure had a three-strikes-you're-out provision to get rid of bad doctors, called for public disclosure of malpractice settlements, and would have required the state Department of Health to investigate doctors with repeated settlements on their record.

"It's disappointing," says Dylan Malone, one of the primary architects of Initiative 336. He lost a child who had been grievously disabled at birth due to medical errors. "Until I see a bill that likely would have prevented injuries like Ian's"—Malone's deceased son—"I can't ride off into the sunset."

In fact, Gregoire says she's disappointed, too. "Everybody didn't get everything they wanted," she says, speaking by phone several days after she announced the bill. "I specifically said I didn't get what I wanted. I wanted reform of the Medical Quality Assurance Commission." The commission is the body under the state Department of Health that investigates and disciplines doctors. The governor says she's committed to "major reform—not just nibbling around the edges." The question is whether this bill, which as of this writing had passed the Senate and seemed likely to sail through the House, will make people feel that the malpractice issue is now done.

The reason you don't hear much griping from patient advocates is that for them, the bill represents a ding-dong-the-witch-is-dead moment. "The dreaded caps are gone," says Malone, referring to the limits on jury awards proposed in failed I-330. However, significantly, Malone was not at the negotiating table, nor was any patient advocate other than lawyers. Lawyers have been fighting tooth and nail in the malpractice debate because caps represented a serious financial threat, and staving them off is cause for jubilation.

The good will around the bill also reflects measures that everybody agrees are constructive, or at least ones that everybody can live with. Arguably, the most significant measures got the least publicity. State Insurance Commissioner Mike Kreidler pushed through provisions that get to the heart of why this issue has doctors up in arms: the astronomical malpractice insurance premiums they have been paying, which they have blamed on the tort system. Kreidler has long said that the problem lies instead with the cyclical insurance business that follows the booms and busts of the economy. He also suggests that sometimes insurance companies just charge too much. "In the last couple of years, insurance companies have been making the highest profits in history," he says. (Or at least close to it, according to a 12-year financial review of Physicians Insurance, the largest malpractice insurer in the state.)

The bill will allow the Insurance Commissioner's office a 30-day period during which to preview rate hikes planned by insurance companies. Currently, the office is authorized to review rate increases only after they are in effect. Changing them at that point, Kreidler says, is "kind of like telling someone who's built a house that they didn't have the right permits and now they've got to tear it down." Kreidler says he might also tell insurance companies to raise their rates. He says certain insurance companies, looking for market share, charged too little in the late 1990s, putting them into financial difficulties that led to dramatic increases in their rates a few years later.

Having been in the hot seat while the initiative war was going on, Kreidler is especially pleased about another provision in the bill that will allow his office to collect information about payouts in malpractice cases, both settlements and jury awards. His office already collects that information from many insurance companies, but not from those that cover high-risk specialties or from self-insured entities like major hospitals. Consequently, his analysis of whether we were, in fact, in a crisis caused by the tort system was subject to attack. He is certain that the debate will arise again. "At least this time, if they want to make charges, they're going to have to argue with facts instead of anecdotes," he says.

Yet the debate may not arise in precisely the same form. There is a new tone in the air. Local hospitals contributed heavily to the initiative campaign for caps. But Randy Revelle, a senior vice president of the Washington State Hospital Association, shows no inclination to return to that cause. "I personally became convinced over the last six months that trying to fix the current system isn't going to solve the problem. We need to go to a new system." Revelle says he's working on a proposal for dramatic reform that would increase patient safety and compensate greater numbers of malpractice victims without them entering the tort system. He won't give details, but he mentions the work of scholars like Michelle Mello. The Harvard University professor is studying a prototype for a system based on administrative courts in which judges specifically dedicated to medical injury would hear cases according to certain guidelines.