Sunday, October 30, 2005

By THOMAS SHAPLEY
SEATTLE POST-INTELLIGENCER COLUMNIST

Our decision as an editorial board to recommend that voters turn down all five initiatives on the ballot, in defense of representative democracy, was a wise one, even though two measures -- boosting performance audits and protecting employees from smoke-choked workplaces -- have particular merit.

But, like Initiative 912, I-330, the doctors' and insurance companies' attempt to make it tougher for patients to be compensated for medical negligence, deserves not just a no, but a hell no.

What we really need is better and more open reporting of negligence claims, quicker and more public disciplining of bad doctors and an end to courts allowing the details of medical malpractice settlements to be kept secret.

I-330's cheesy campaign veneer is that good doctors are leaving the state because they can't afford the high cost of malpractice insurance, jeopardizing our "access to quality health care." The initiative's inane solution to keeping good doctors is to limit the amount of compensation to those injured by not-so-good doctors, discourage lawyers from taking on malpractice cases for all but the well-to-do, and ask patients to give up the right to their day in court.

I-330 would cap non-economic damages in medical malpractice cases to $350,000 (there is a Rube Goldberg scheme in which -- if non-medical mess-ups were also involved -- non-economic damages could top $1 million).

A badly injured or disabled patient with a healthy salary and strong lifetime earning potential stands to receive a big chunk in "actual" damages to compensate for his earnings loss. But what of someone who's poor, elderly or a stay-at-home mom? Their "actual" damages will be much less. Capping non-economic damages hurts those who are not big earners.

Capping damages isn't even legal in Washington state, and this initiative won't change that. The Washington Supreme Court has ruled, correctly, that fixed caps on damages conflict with the constitutional right to have a jury decide one's fate. And Washington already bars "punitive" damages.

I-330 would limit the percentage attorneys representing injured parties can receive of any settlement or award. The pitch is that it means less for greedy lawyers and more for the injured patients.

But 70 percent of nothing is still nothing.

When well-heeled folks are injured, they can afford to hire lawyers. The rest of us can't. So lawyers take cases on a contingency basis -- their getting paid is contingent on winning your case. The cost of taking on potentially losing cases is built into the contingency fee in winning cases. Limiting the cut lawyers take if they win limits the cases they're willing to risk losing. The initiative contains no limits on the take for defense attorneys.

Those "runaway juries"? Docs win 86 percent of the cases that go to trial.

The most outrageous provision in I-330 is that before treating you, issuing you health insurance or a prescription, providers could require you to sign a contract saying: "You are giving up your right to a jury or court trial."

Forcing people to sign their rights away as a condition of treatment is something this state's feisty, independent voters should never accept.

Not just no, but hell no.

Thomas Shapley is an editorial writer and member of the P-I Editorial Board. E-mail: thomasshapley@seattlepi.com.

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