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Monday, December 8, 2003 - Page updated at 12:00 AM

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Doctors to press harder for damages cap in malpractice suits

Seattle Times staff reporter

Spooked by steep premium increases for malpractice insurance, doctors are taking a tough line with lawmakers, vowing to work to unseat those who don't support limits on jury awards in the upcoming legislative session.

"It's a short session in an election year," warned Tom Curry, executive director of the Washington State Medical Association (WSMA). "Legislators would be well advised to go home and run in support of tort reform."

The doctors' opening salvo — and a stinging retort from opponents — signaled a boisterous reprise of the liability reform battle that ended in a stalemate when lawmakers adjourned their last session.

Rep. Patricia Lantz, D-Gig Harbor, said doctors are acting as "lackeys for the insurance industry" and have lost sight of fairness in their quest for what she called the "holy grail" of caps on jury awards.

Lantz, chairwoman of the House Judiciary Committee, helped block WSMA-supported legislation last session. She says she's sympathetic to doctors who are finding insurance expensive and scarce.

But doctors are taking the wrong approach, she said. "It doesn't work in the Legislature to say, 'My way or the highway.' ... It's totally counterproductive when you have an issue as complex as this that needs multiple solutions."

The effort to pass caps on jury awards stalled in the last session after leaders in the Democrat-controlled House, including Lantz, took an "over my dead body" stance, arguing that limiting awards for noneconomic damages such as "pain and suffering" would discriminate against some of the most vulnerable injured patients. Similarly, the Senate refused to pass House reforms, which addressed a broad range of related issues.

Many doctors agree the issue is too complex to address simply by capping such awards. But end-of-year insurance-premium increases, coverage limitations and cancellations spurred many to action.

"I don't think our patients understand what a crisis this is," said Dr. Judy Kimelman, an obstetrician-gynecologist from Seattle, who rallied colleagues to meet with Curry last week to plan strategy. "We feel up against a wall. We don't feel we have choices."

Doctors in her seven-person group were recently told their insurer would not cover losses above $1 million, Kimelman said, scant protection when judgments of $2 million or more are not uncommon in obstetrics lawsuits.

Members of her group, who now deliver about 100 babies a month, are deciding whether they can afford to continue obstetrics, she said. "We risk our homes and savings by not having adequate coverage."

Several emergency-physician groups serving local hospitals recently received notices from insurers they will not be renewed for 2004, said Dr. Cindy Markus, president of the state chapter of the American College of Emergency Physicians. They include emergency physician groups at Providence St. Peter Hospital in Olympia, Providence Centralia Hospital in Lewis County and Providence Everett, among others, she said.

"This has caught us all by surprise," noted Dr. Jim Andrews, medical director for emergency care at Highline Community Hospital.

In the current insurance climate, one lawsuit by a patient — even if not substantiated — can make a doctor uninsurable, Andrews said. Without insurance, a doctor can't work in most hospitals. And hospitals, already facing shortages of specialists willing to see emergency patients, can't afford to lose emergency doctors.

"We're really the providers of last resort," Andrews said.

Insurance worries

Last year, a number of doctors faced large premium increases, and some, including a group of Seattle neurosurgeons and scattered family doctors, were canceled by their insurers. Most, however, eventually found insurance; one large group elected to insure itself.

Some rural doctors stopped delivering babies because of the added insurance cost, but patients elsewhere generally haven't complained of a doctor shortage.

Scott Jarvis, deputy insurance commissioner, said less than 1 percent of doctors were not renewed this year — a smaller percentage than nonrenewed homeowners. But of the three largest malpractice insurers, one is in receivership, another is not taking new business, and a third has stopped insuring doctors who are not employed by hospitals. As a result, the market is still tight, Jarvis said.

Last week, lawmakers on both sides of the issue and the state's insurance commissioner said they were preparing legislation to address the problem.

Sen. Dale Brandland, R-Bellingham, said liability reform will definitely be an issue during this legislative session, which starts Jan. 12.

It's possible the Senate will revive a version of last year's multipurpose "omnibus" bill that would cap medical-malpractice jury awards; limit liability faced by government, construction contractors and employers responding to reference checks; and proportion liability payouts by fault.

Liability reform is crucial for contractors, government agencies and doctors alike, Brandland said.

Lantz and other House leaders are working on a package of reforms focused on the broader issues involved in medical-malpractice insurance. The proposals aim to prevent medical errors, resolve disputes early and with less cost, and make insurance more available and affordable. Also in the works is a proposal to increase Medicaid payments to doctors who deliver babies and staff emergency rooms.

Simply capping noneconomic damage awards, Lantz said, wouldn't address the real problems and would arbitrarily penalize injured patients without paying jobs, such as homemakers, children and seniors. Economic-damage awards pay for lost wages, medical care and other financial losses, but not for "pain and suffering" endured by injured patients or families of patients who die.

"Caps? I'm just not going to go there," she said. "It's not fair."

Lantz, who is running for re-election this year, bristled at the WSMA's warnings. "Why threaten me when I am working on a very principled approach to solving the problem that doesn't assault the Constitution but finds ways of taking care of injured patients?"

Poll: Voters would support cap

The Liability Reform Coalition has released a statewide telephone poll showing voter support for liability limits. The coalition includes associations of doctors such as the WSMA, insurance companies, government entities, hospitals and other health providers.

According to the poll, 72 percent of voters support limiting noneconomic damage awards. But only 62 percent supported the specific cap the WSMA wants: $250,000. The poll's sampling error range was 4 percentage points.

According to the poll, 79 percent of voters would be "more likely" to vote against a candidate who received support from "personal injury lawyers."

The poll was swiftly denounced by opponents of awards limits.

"What they didn't ask was this: If you were injured by a wrongdoer, would you be willing to give away your right to a jury trial?" asked Judy Massong, president of the Washington State Trial Lawyers Association.

Bill Monto, associate director of Washington Citizen Action, said voters would have answered differently had the term "personal injury lawyer" been changed to "lawyer who stands up to wealthy corporations and environmental polluters dumping toxic waste into the river."

Insurance Commissioner Mike Kreidler said he will propose legislation aimed at stabilizing the insurance market, including creation of a sort of reinsurance "high-risk pool" for hard-to-insure specialties.

"We have a window of opportunity to do some good things that would help the medical-malpractice-insurance market," he said.

Carol M. Ostrom: 206-464-2249 or costrom@seattletimes.com

Copyright © 2003 The Seattle Times Company

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