Author: John R. Alexander

The media campaign and state legislative lobby campaign for alleged “Tort Reform” is in high gear on our television airways and within the halls of state government in Olympia. The misinformation about malpractice lawsuits and personal injury litigation remains the same. It is alleged that filings of lawsuits on personal injury claims are increasing; that jury verdicts are out of control and ridiculously high in personal injury cases; and that physicians are being driven from Washington by sky-high medical malpractice insurance premiums.

The proposed solutions for these alleged problems is to pass legislation such as ESSB 5287. This and other legislation now being vigorously pushed by an extremely well-funded coalition of insurance companies and large corporate interests would among many other regressive measures place a cap of $350, 000 on jury awards for “non-economic damages,” i.e., for pain, suffering, disfigurement, loss of life, loss of physical and mental function, and loss of enjoyment of the activities of life.

The law firm of Adler Giersch, PS believes we owe it to our patients and clients to first know the facts before rushing to judgment on things so important as radical restrictions on the rights of the average citizen have redress in our courts of law. The following brief compilation of facts, on the issues of medical malpractice “tort reform”, is intended to help provide information on the core issues and assertions being put forward in this debate. We hope you will find this informative and helpful.

I. Insurance Premiums Will Not Go Down if Caps on Damages are Imposed; Statistically, Premiums are Higher in States with Caps.

1. During the past year, in every state that passed a cap on damages in medical negligence cases, insurance premiums rose. These increases actually exceeded the amount premiums increased in states with out caps. (Source: Medical Liability Monitor)
2. The assertion that premiums fell in Texas after their initiative capping damages passed in September is just plain false. Four of the five largest insurers in Texas increased premiums anywhere from 19% to 35%. (Source- Medical Liability Monitor and Texas Watch, the leading consumer watchdog organization in Texas.)
3. California is often cited as the panacea for doctors because of their restrictive liability system. But, California’s malpractice premiums are the 25th highest in the Union, while Washington is 31st. (Medical Liability Monitor)
4. The General Accounting Office (GAO) and the Congressional Budget Office (CBO) have both completed recent studies that conclude liability caps will not reduce premiums.
5. In a “King County Journal” article of January 26, 2004, the Washington State Medical Association (WSMA) itself noted a cap on damages will probably not lower premiums.
6. WSMA lobbyist also testified that passing the proposed legislative packages will not result in lower premiums, “So even if you were to cap non-economic damages, the economic damages would still cause acceleration in the premiums – in fact, they will not go down.” Cliff Webster, in his testimony before the House Judiciary Committee on February 21, 2003.

II. The Congressional Budget Official (CBO) study identifies cost factors that are involved in rising medical malpractice premiums. The number one factor is the insurance cycle, which includes the loss of projected investment income, and the dramatic increases in the cost of reinsurance which has been caused by weather related disasters and attacks on the Pentagon and World Trade Center of 9/11.

III. Lawsuit filings are down, pay-outs per doctor are down, insurers in malpractice cases routinely request juries, and doctors win the majority of medical malpractice trials.

1. The total pay-outs per year, per doctor in Washington State, when adjusted for medical inflation, has remained constant for over two decades and has actually declined in the last two years of this alleged crisis. (Source: Americans for Insurance Reform, December 2003 study, “Stable Losses/Unstable Rates in Washington”).
2. The Washington State Medical Association and the medical malpractice insurers are insisting runaway juries have caused a crisis. In a comprehensive study of medical malpractice trials in the nine largest counties in Washington state, in the six and one-half years from 1997 to 2003, a grand total of 95 medical malpractice cases were tried. This is an average of less than nine trials per year. The findings include the following:
   • In 81 of the 95 cases, the insurance companies requested the jury, not the plaintiffs.
   • The jury sided with the insurer and awarded no compensation in approximately two thirds of all medical malpractice lawsuits tried in Washington court.

SOURCE: A County by county survey of all cases filed in the county clerks’ offices for King, Pierce, Spokane, Clark, Kitsap, Yakima, Thurston, Whatcom, and Skagit Counties; this represents over 70% of state’s population; conducted by Sara Crumb, WSTLA Government Affairs Associate.