One of this year’s most controversial issues, tort reform and medical malpractice payout caps for non-monetary damages, remains at the forefront of legislative discussions and lobbying efforts.

Though some consumer groups and trial lawyers dispute claims that capping the awards will solve the argued health-care crisis in Washington state — and even argue the real issues are not as they are presented by the pro-reform side — insurance groups flanked by doctors say they will fight until the end.

The Washington State Medical Association says the entire health care system is crippled, largely due to the rising costs of malpractice insurance costs. Many physicians are packing up, many others are retiring early, while others simply stop practicing in the high-risk fields, WSMA said in a September 2002 report, citing 30 percent to 50 percent increases in the last two to three years in premiums for some specialties.

And doctors aren’t the only ones moving to greener pastures. Several insurance companies pulled out of the state medical liability insurance market, including two companies that covered nearly 2,500 doctors.

“The tort system is sick, and people need to understand how the sickness affects them,” said Dr. Brian Wicks, WSMA board member and orthopedic surgeon at Bremerton’s The Doctors Clinic.

Between the insurance hikes, the decrease in Medicare payments, increase in salaries and a handful of other factors, Wicks said, the cost of doing business becomes prohibitive to many doctors — and if the tort system isn’t fixed, patients will have limited access to their physicians. Already, he said, doctors are limiting the number of Medicare patients they will see, or are quitting high-risk procures like delivering babies.

In addition, doctors are more and more practicing what they call “defensive medicine,” ordering extra tests that may not be necessary but that will help them defend themselves should they ever be sued, according to Wicks.

Tort reform proponents are seeking to limit lawsuit award for non-monetary, or “pain and suffering,” damages to $350,000, which would not affect the amount paid for expenses such as loss of wages and medical care.

“We are not asking for radical solutions to hurt our patients,” said Gary Morse, vice president and general counsel for Physicians Insurance, a physicians-controlled insurance provider. “One of the frustrations we have is that data on the non-economic damages cannot be objectively measured. We have a legitimate, reasonable argument, and they (the trial lawyers) have a legitimate, reasonable argument, but what I am saying is, ‘How do you measure it?’”

Physicians Insurance lost $21.5 million in 2002, and CEO and President Thomas Myers said in a newsletter that the poor performance over the last few years is “being driven by an alarming increase in the severity, or value, of the claims we receive and adjudicate.”

Morse acknowledges that the tort reform would not lower insurance premiums and may not even keep them flat, but what it would do is keep the system from collapsing, and in the long-term premiums would potentially decrease slightly.

Not everyone agrees. Rep. Pat Lantz, who stopped a tort reform bill from being moved on the House floor last legislative session, says it doesn’t make sense because “it punishes people who are injured through no fault of their own and doesn’t give relief to doctors.”

Consumer advocates agree. An April 2003 report by Public Citizen, a nationwide nonprofit, says malpractice insurance payouts in the state have remained flat while the number of payouts has declined. The report says there is no evidence of doctors leaving the state and in fact nearly 4,000 more practice today compared to a decade ago.

But WSMA disputes these and other claims used by Public Citizen and others to counter WSMA’s own conclusions.

“The doctors leaving the state may still keep their license and still be on the roll as licensed physicians. Nobody has accurate numbers, and we have to rely on what we see in different communities,” said Wicks, citing entire medical practices being closed, as was the case with the Memorial Clinic in Olympia and the Everett Family Practice. In 1998, 31 percent more WSMA members left the state than before.
The reform, doctors say, will ensure that all their patients have timely access to care, and assures them they will get fair — and timelier — compensation if they are injured.

“For every dramatic case that’s settled, the side-effect is that thousands of people can’t get health care,” Wicks said. “…Our primary objective and challenge this year is tort reform.”

They have the backing of many lawmakers. Sen. Bob Oke’s office said tort reform is on top of the agenda for the Senate Republicans, who will probably move the bill in the first seven to 10 days of the legislative session.