Many states have versions of “tort reform” laws that were enacted, in part, to limit the number and outcome of medical malpractice lawsuits. Does Washington have “tort reform” limits? Many states’ limits were passed in the late 1990’s and early 2000’s when the medical community, and the malpractice insurance companies, claimed that malpractice insurance premiums were raising health care costs and pushing some doctors out of practicing medicine.
Some of the laws, however, were passed during earlier periods, such as in 1975 when California passed its Medical Injury Compensation Reform Act (MICRA)
A major part of that law was a limit on the amount a jury could award for non-economic damages, such as pain and suffering, which was capped at $250,000. This number has not changed in the forty-five years since. As a result, most California attorneys will only file a medical malpractice case when there are very large economic damages, such as costs of future care and lost income.
The “tort reform” laws are many and varied. Some, like the California law, have limits on certain categories of damages. Others impose limits on attorney’s fees, sometimes called “sliding scale” fees. Under the scheme, an attorney may be able, for example, to recover 40% of the first $100,000, but progressively smaller percentages of additional amounts awarded by a jury or obtained in settlement. The effect of that is to often make it economically infeasible for an attorney to seek larger amounts. The clients may suffer because there is a disincentive for an attorney to seek larger settlement amounts or go to trial if the risks and resources involved cannot be justified.
Other “tort reform” measures mandate screening panels to screen a claim before a lawsuit is filed. The panels are sometimes comprised only of doctors, but in some states include an attorney or other non-physician. The decision of the panel can then be presented to a jury if the case goes to trial. Not surprisingly, it is difficult to obtain a verdict at trial when the panel has decided it has no merit.
Some laws impose pre-filing requirements that are thought to discourage attorneys from filing a medical malpractice action. For example, Washington in 2006 passed a law that 90 days notice had to be made to a defendant in advance of filing a malpractice lawsuit and that a lawsuit could not be filed unless and until a “certificate of merit” signed by an appropriate expert was filed with the lawsuit. The idea was that the more steps that had to be taken before filing a lawsuit, the less likely an attorney would take those steps. The Washington Supreme Court later held that these pre-filing requirements violated the Washington Constitution regarding access to court.
In 2005 there was a major effort in Washington made by the medical community and insurance companies to impose strict “tort reform” limits on medical malpractice cases. The initiative was backed by, among others, medical societies, insurance companies, counties, major corporations and the state. The proposed law included pre-filing requirements and limits on both damage awards and attorneys fees. Interestingly, it was opposed by the state nurses’ association as being unfair to patients.
It was a hard-fought fight, with its proponents spending huge amounts pushing it, and the state trial lawyers’ organization and other pro-consumer groups spending money resisting it. It ended up failing in a 56-43 vote.
Since then, Washington has had not any “tort reform” limitations on medical malpractice cases that are present law, except one: the state malpractice statute includes an arbitration provision. Under the law, when a lawsuit is filed, the attorneys must indicate whether their clients wish to invoke the arbitration statute, by filing a declaration saying the provision was explained to the client and was declined. The arbitration provisions are not favored by attorneys for either side, and the author does not know of any case in which it was accepted by both sides.
Many studies have been done regarding the impact of “tort reform” laws on malpractice cases and the provision of medical care. Physician groups have sometimes claimed that, without such laws, fewer doctors would be willing to practice medicine. In fact, however, the states that have the most severe restrictions have not had an increase in physicians, and states with no restrictions have not seen an outflow of doctors.
It is true that in states with the most restrictive laws there are fewer malpractice cases filed, but the counterpart of that fact is that many people with valid claims are not able to seek redress in our court system.
Read more about “tort reform” here: Dr. Death Podcast Illustrates Many Things, Including The Role Of Tort Reform On Patient Safety.; Another two studies show medical malpractice tort reform has had little impact on the US Health Care System
