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Wednesday, February 22, 2006 - Page updated at 12:00 AM

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Malpractice deal is a "first step," but many tough issues remain

Seattle Times staff reporter

Gov. Christine Gregoire invested precious time and political energy brokering what she called a "breakthrough" on medical malpractice, bringing together — at least for now — bitterly warring factions of doctors and lawyers.

But despite all the fanfare the compromise garnered Monday, the question remains: Will it solve the medical-malpractice problem in Washington? The answer, in a word: No.

In fact, everybody agrees about that — even the governor, who called it a "good first step."

Those involved in the negotiations heap praise on Gregoire for pulling together fractious groups that only a few months ago were accusing each other of egregious, even slimy, acts and motives as they championed competing ballot initiatives that both failed.

With Gregoire at the table, each side agreed to choke down a few bitter pills. The doctors won't get limits on jury awards, the cornerstone of their ballot initiative, for example. The lawyers have to tell juries if their injured patients have already been paid by other sources for the injury.

"To me the key was that four months ago we were spending millions of dollars pillorying everybody, and now you've got a Kumbaya kind of press conference," said Randy Revelle, who represented the Washington Hospital Association.

But in the end, whether doctors and lawyers get along isn't what drives the medical-malpractice fight. Instead, it's about key issues, including patient safety, preventing medical errors, effective discipline of negligent providers and fair compensation for injured patients, say those involved.

And most of those issues were left for another day.

"I think it's a lot of well-intentioned pablum," said state Rep. Tom Campbell, R-Roy, a chiropractor who says he'll vote for the compromise even though he thinks it lacks patient protection.

The relevant provisions are "a bunch of nonsense that's not going to affect anything," he said. "It's a bunch of rhetoric."

The Legislature is expected to approve the compromise, announced Monday after confidential negotiations over several months. Provisions of the rewritten House Bill 2292 include:

• Protecting doctors from having their apologies used against them in court.

• Allowing juries to know if an injured patient had already received payment from another source.

• Requiring plaintiffs' lawyers to review medical-malpractice claims with a medical expert in the field.

To reach the compromise, the governor "kept things going and kept people moving to where they would say 'yes, we'll do this, and yes, we'll do that,' " said Larry Shannon, government-affairs director for the Washington State Trial Lawyers Association.

Shannon and Revelle also said Gregoire's background as an attorney, and her experience in negotiating a national tobacco settlement as the state attorney general, showed.

"I've been to a lot of these things and I just thought she was really skilled at it," Revelle said. "When she promised she would say something and do something, she did it."

The compromise "sets the stage" for the two sides to tackle larger issues, said Revelle.

"If this had not been successful, in terms of reaching agreement among these parties, the chances of getting to the major reforms would be very low," he said. And the key to accomplishing more, Revelle added, is for Gregoire to stay involved.

Last year, doctors and lawyers together spent about $14 million on the dueling and unsuccessful initiatives. The doctors' proposal, Initiative 330, would have limited plaintiffs' attorney fees and capped pain-and-suffering awards in medical-malpractice cases. It also would have allowed providers to deny treatment to patients who refused to sign agreements to resolve malpractice claims through arbitration rather than in court.

The lawyers' proposal, Initiative 336, called for revoking the licenses of doctors who lost three malpractice verdicts in 10 years and requiring public hearings on malpractice-insurance rate increases.

If the compromise hadn't happened this year, said Insurance Commissioner Mike Kreidler, it very likely never would have happened.

"We had a window of opportunity," he said. "If we had waited until next year, I don't think the political pressure would have been there to do what needed to be done."

Still, Kreidler predicts the issue will come around again.

Sen. Dale Brandland, R-Bellingham, who led tort-reform proposals in the Senate, said the compromise is welcome, but there is much more to do.

For example, no one has been able to say whether the compromise would have any impact on obstetricians, who have complained loudly that they are being forced out of business by exorbitant insurance premiums, he said.

On the other side, Campbell said the compromise contains scant protection for consumers.

"We have a lot of very bad practitioners in this state who continue to practice, because the system is practitioner-based, not consumer-based," said Campbell, whose father died in 2002 of an infection he contracted in a hospital.

"Until we change it, the consumer has every reason to feel like the system is not in their best interest," Campbell said.

Campbell was singing a slightly different tune late Tuesday after a meeting with Gregoire. "I was very encouraged," he said.

Campbell said Gregoire "agreed with me that the system is indeed dysfunctional" and pledged to work on broader changes over the summer.

Also, Campbell said, Gregoire indicated support for several patient-safety bills he's sponsoring this session. One would require hospitals to report infections like the one that killed his father. Another would make it easier to suspend providers' licenses. Yet another would beef up background-check requirements for health professionals.

He said he has an e-mail inbox stuffed with horror stories from patients and families.

"This is not going to go away," he said. "We have a lot of building yet to do."

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

Seattle Times reporter Andrew Garber contributed to this story.

Copyright © 2006 The Seattle Times Company

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