Initiative 330 is sponsored by the State Medical Association. The doctors group says their proposal is needed because costly lawsuits are fueling higher insurance premiums and causing doctors to reduce or close their practices. The result, they say, is shortages in important specialties like obstetrics, neurosurgery and trauma care.

Initiative 330 would cap malpractice jury awards for non-economic damages, payments for pain, suffering and emotional distress, at $350,000. It would also limit how much of a jury award lawyers could collect as contingency fees. Full payments for medical bills, long-term care and lost wages would remain unchanged.

The State Trial Lawyers Association is not taking this proposal lying down. They say the problem lies not with large jury awards and high legal bills, but with bad doctors who injure their patients. Their competing ballot measure, Initiative 336, would increase regulation of insurance rates, discourage meritless lawsuits and create a state-subsidized malpractice insurance program. It would also revoke the license of doctors convicted three times for medical malpractice.

The struggle between doctors and trial lawyers has become increasing intense in recent years. Expensive malpractice lawsuits have become a major cost-driver for all health care providers. Nationally, doctors, clinics and hospitals spend more than $21 billion a year on malpractice premiums. In Washington, the number of $1 million-plus jury awards has nearly quadrupled in ten years. Right now, state law puts no limit on the size of non-economic jury awards. These costs get passed on to consumers in the form of bigger medical bills and higher insurance premiums.

Washington is one of 21 states identified by the American Medical Association as a state in medical liability crisis. The AMA says doctors are being forced to cut their practice or move out of state. Here are some examples reported in local newspapers:

Doctors Michael Kappleman and Gary Koch of the Vashon Health Center announced in January 2004 that they would no longer deliver babies “because of the rising costs of malpractice insurance...” These were the last of Vashon's obstetricians; pregnant women must now leave the island to give birth.

In 2004, Valley Women's Healthcare in south King County announced a cutback in obstetric services to patients. Also, Swedish Physicians reduced the number of family doctors who deliver babies from 21 to seven.

Dr. Mark A. Snyder reports that in Yakima 19 doctors have left the area in recent years, that specialists are not available to treat accident victims, and that “family practitioners are cutting back on obstetrical patients because of malpractice premiums.”

California adopted non-economic caps in 1975 to stop soaring liability rates. The law has greatly slowed insurance increases. From 1976 to 2000, malpractice premiums in California increased 167 percent, while in the rest of the nation they rose 500 percent.

In 2003, Texas adopted a $250,000 cap on non-economic damages. Within a year, 15 new insurance companies had entered the market and the largest insurer, Texas Medical Liability Trust, lowered its rates by 12 percent. At the same time, the overall number of doctors in Texas has gone up, with certain specialties, obstetricians and gynecologists, leading the way.

In Washington, officials at our state's Health Professions Quality Assurance office oversee the qualifications of practicing physicians. Having accepted this responsibility, policymakers should make sure the mission is carried out effectively. The state should revoke the licenses of incompetent doctors before they do serious harm to patients. Fewer patients would be injured, and fewer lawsuits filed, if medical officials were more effective in preventing bad doctors from practicing in the first place.

Research shows that caps on non-economic damages in other states have been effective in reducing the costs malpractice lawsuits impose on the health care system. That, combined with stronger enforcement of professional medical standards by state officials, will move the system toward lower costs, better quality and improved services for patients.

(Editor's Note: Washington Policy Center (WPC) is an independent, non-profit 501(c)(3) research and education organization. Nothing printed here is intended to aid or hinder the passage of any legislation. Read the full study and contact WPC at wpc@washingtonpolicy.org or 1-888-WPC-9272.).