November 2015 marks ten years since the voters of this state rejected an initiative, I-330, that would have severely restricted the rights of injured patients to seek recourse in our civil justice system. For WSAJ members who started practicing after 2005, the significance of this historic event may just be past history. But it is history that still echoes in our system of justice. Because of the defeat of I-330, Washington remains one of the few states that still has no caps or limits on damage awards or attorney’s fees. WSAJ attorneys practicing today owe a great deal to those who fought this fight – and won.
The Background of I-330
To place I-330 and its defeat in context, it is important to note the “tort reform” storm that was brewing in 2002-2005. This was a period when, because of the cyclical nature of insurance markets, medical malpractice premiums were increasing and leading to a cry for tort restrictions. Throughout the nation, states were planning and enacting legislation, or initiatives and referendums were passing, to sharply limit medical negligence lawsuits and awards.
The malpractice premium raises were blamed, of course, on greedy trial lawyers and a supposed surge of frivolous lawsuits. There were cries that doctors were being forced out of practice or leaving the state in droves, seeking a less lawsuit-friendly state.
The increase in premiums, no matter how they were explained, did cause real pain for physicians and their practices and the costs could not simply be passed on to their patients. Because these problems were real, the physicians’ cries for action were heard in Congress and in state legislatures. WSAJ (then WSTLA) members who lobbied the legislature would see large groups of doctors in white coats crowding the halls. At hearings, they hissed and booed when WSTLA and patient advocates argued against malpractice reform.
Added to their voices were those of the insurance industry, large businesses, hospitals, and the pharmaceutical industry. At one legislative hearing on a “tort reform” bill, those who signed up to support the bill included a dozen representatives of these interests. On the sign-up sheet for those who would testify in opposition appeared the names of two WSTLA members. As Larry Shannon and Michael Temple can tell you, it could be lonely in Olympia in those days.
The reform voices were echoed and reinforced by those running for office. George W. Bush voiced strong support for legislation to restrict the rights of injured patients. Republican candidates for state and federal offices, and many democrats, ran in favor of “tort reform.” Full-page ads were run by tort reform advocates contending that patients can’t find doctors or afford medical care because of the trial lawyers and their clients. The civil justice system was portrayed as “jackpot justice” or the “litigation lottery.” Karl Rove compressed it into a simple theme: “America’s business and health care ills are caused by greedy trial lawyers who bring junk lawsuits resulting in outrageous jury verdicts.”
By 2004, malpractice restrictions, including caps on awards and limits on attorney fees, were passed in state after state: Texas, Florida, Nevada, Utah – the list is a long one. Against this hue and cry, and the money supporting it, were the facts: claims for medical negligence were not rising, payouts remained lower than medical inflation, jury verdicts for claimants were sparse, and trial lawyers carefully screened out cases that lacked merit.
During the 2002-2003 Washington legislative session, the pressure was building for action to curb malpractice lawsuits. WSTLA did everything it could to head this off, including trying to work out compromises with WSMA (Washington State Medical Association) and other groups. Arrayed against WSTLA were the Liability Reform Coalition and WSMA. The Coalition was interested in much more than just malpractice reform, and they used this battle to push their broader agenda. The result was a bill that, if passed, would have gutted not only medical malpractice laws but also the overall tort system.
Accompanying that bill were many others. It was a time of crisis for WSTLA, and its leaders and members turned out in force to try hold back this tide of tort reform legislation. They succeeded in holding off legislation that would have included caps on damages, limits on fees, and even restrictions on which experts could be used in a case.
The I-330 Battle
In the 2003-2004 session and in 2004-2005, the pressure escalated, and WSTLA still managed to hold off disastrous legislation. But in 2005-2006, the “tort reform” tide was running strong and I-330 emerged as the vehicle by which its advocates would advance their agenda. The proponents spent the money to gather 300,000 signatures to put I-330 on the ballot. Doctor’s offices would ask patients to sign it before they would be seen by their provider.
I-330 was a smorgasbord of anti-plaintiff ideas. It had 20 pages of fine print that granted unprecedented protection to health-care providers, insurance companies, and nursing homes. It capped damages and limited attorney’s fees. It removed the protections of the Vulnerable Adult statute. It shortened the statute of limitations for minors and would have allowed doctors to require patients to give up their legal rights as a condition to receiving medical care.
It was well financed, with the proponents spending more than $9,000,000 in an effort to pass it. Financial backers included WSMA, major insurance carriers, hospitals, the pharmaceutical industry, and most business and industry groups. They counted on their ability to fund the campaign, and thought the opposition would come only from the trial lawyers. During the campaign, they attacked lawyers by showing sleazy ads with lawyers stuffing money into their pockets.
The I-330 backers were wrong about only trial lawyers opposing the initiative. Organizations and groups that worked with WSTLA to defeat I-330 included, to name only a few, Northwest Paralyzed Veterans Association, Washington Citizen Action, Public Citizen, and AARP. Our allies included more than 50 groups and thousands of individuals. Many unions, as well as the State Labor Council, opposed I-330. Civil rights groups joined in the fight, as did senior organizations. The list of those who joined WSTLA in opposing I-330 could go on for pages. Individuals who had been severely injured by medical negligence came forward and were powerful advocates for patient rights.
Having the Washington State Nurses Association on our side was particularly important. I remember searching for a radio station I wanted to listen to when I came across a Seattle conservative talk show by chance. The speaker was talking about the I-330 initiative. He said that since the nurses were opposing it, he would vote against it. After all, “the nurses know what really goes on in hospitals and doctors’ offices, and if they say this is a bad bill, it probably is.”
Some attorneys who did not handle medical negligence cases wondered why they should put their money and efforts into the I-330 campaign. It was explained that this was like the canary in the coalmine. If the voters passed I-330, it would encourage even more legislative efforts to restrict the rights of the injured, no matter how the injury occurred or who the tortfeasor was. This was a fight that had to be won if our civil justice system would continue to work for injured people.
It is difficult to describe in writing the magnitude and intensity of the campaign to oppose I-330. For WSTLA, it was an “all hands on deck” campaign because the reality was that a loss would impact not only our practices but also everyone in this state who might be injured by negligence. The Holly Ball was even canceled that year so preparing for it would not distract from the energy needed for the fight. Initial polling was discouraging, but that only seemed to spur WSTLA and its members and allies to work harder.
On November 8, 2005, the voters resoundingly defeated I-330, by a vote of 57% to 43%. It was a momentous and historic event in the national world of “tort reform” efforts. No other state had been as successful in heading off the proponents of “tort reform.” Over the post-election holiday season, even without the canceled Holly Ball, WSTLA and its supporters
celebrated this well-earned victory.
The fight against I-330 was spearheaded by the WSTLA board, leadership, staff, and countless members who contributed time and money. Starting to name them would mean someone might be upset because they are left out. Hundreds of WSTLA members participated in the campaign by contributing money, distributing yard signs, speaking at meetings, sending letters to the editor, and conveying the message to their clients.
Although it is impossible to name everyone who contributed to this effort, Gerhard Letzing and Larry Shannon must be named. The public relations people WSTLA hired did an outstanding job of crafting and delivering the message needed to defeat I-330, but without the leadership of Gerhard and Larry, many of us doubt this effort could have succeeded.
The I-330 fight was successful, but the efforts to restrict the legal rights of our clients continue. To quote Reed Shifferman in a Trial News article in January, 2006: “November 2005 was just the last day of another battle. Our work is not done. We must remain vigilant and steadfast. We can improve the legal system and health care without giving up constitutional rights to hold negligent health care providers responsible.”
Gene Moen is a partner in the Seattle firm of Chemnick Moen Greenstreet, which limits its practice to medical negligence claims.
This article originally appeared in the November 2015 Trial News, found here:
https://www.washingtonjustice.org/index.cfm?pg=trialNewsDB&tnType=view&indexID=10798
Publication Date: November 2015
Volume: 51-3
Author: Eugene M. Moen
Categories: Retrospective, Damages, Personal Injury, Tort Reform
