Washington's Weird Bill

The Washington Senate just passed a hodge-podge medical malpractice reform bill unlikely to make a difference.

Breaking down the main provisions:

• Changes that would prevent apologies to patients from health care providers from being used in court, as well as a requirement that lawyers would have to file certificates of merit when filing suit against health care professionals

Y'know, it's really fun to play this game, but unmerited lawsuits pretty much never make it to court.  It's exceedingly difficult to sue, and lawyers have no incentive to go after cases with a high risk of failure.  This change is purely symbolic.

• the bill would place a $1 million cap on non-economic damage awards in malpractice cases that go to arbitration instead of trial

I'm trying to find the stat, but I imagine there aren't many arbitrations that involve over $1 million for non-economic damages, so it's unclear how much this would do.

• The malpractice bill also would enable the insurance commissioner to reject increases in doctors' insurance premiums and collect data on malpractice payouts for analysis

This just isn't the government's place.  Why?  Because the "data analysis" will end up in a vault (or hard-drive) somewhere and is unlikely to be used for anything.

• Members of the public would be added to the doctor disciplinary board

This one is the strangest of all -- what do they mean by "members of the public"?  Is it John Q. Patient or someone with actual knowledge about medical practice and licensure? 

There's no caps on damages or efforts to make it more difficult to sue, but this amalgam of ineffective measures is a sorry excuse for reform.  Mandatory reporting of injury, initiatives to set up more arbitration, and stricter punishment for doctors (i.e. license revocation) would be much sounder ways to proceed.

Update:  Reader Public Health Press points out the more pernicious aspects of the certificate of merit: "Requiring a certificate of merit is a real change, but the devil is in the details (I don't have the bill in front of me, but that won't stop me from posting my thoughts!). Illinois requires such certificates, and recently made changes to their process. Generally, certificates are filed by the plaintiff's attorney with an attached Affidavit of Merit by a licensed medical practitioner, who must review the record and state there is a meritorious claim. That, in and of itself, is an additional administrative hurdle and cost incurred by the attorney and the patient/victim up front, and the burden goes up depending on the qualifications required of the expert (for example, do they have to be in the same or a similar specialty, or can it be just any physician with some working knowledge of the area in question?). But here's the way they can make a big difference in the number of suits filed: if the affidavit of merit requires details about the reviewing physician be disclosed (e .g., physician's names, addresses, etc.), it can create a tremendous amount of peer pressure to prevent physicians from signing on to these cases, and therefore make it significantly more difficult to get over the hurdles needed to file the claim."

Comments

[Public Health Press]

A few thoughts on the weird bill:

Requiring a certificate of merit is a real change, but the devil is in the details (I don't have the bill in front of me, but that won't stop me from posting my thoughts!). Illinois requires such certificates, and recently made changes to their process. Generally, certificates are filed by the plaintiff's attorney with an attached Affidavit of Merit by a licensed medical practitioner, who must review the record and state there is a meritorious claim. That, in and of itself, is an additional administrative hurdle and cost incurred by the attorney and the patient/victim up front, and the burden goes up depending on the qualifications required of the expert (for example, do they have to be in the same or a similar specialty, or can it be just any physician with some working knowledge of the area in question?). But here's the way they can make a big difference in the number of suits filed: if the affidavit of merit requires details about the reviewing physician be disclosed (e.g., physician's names, addresses, etc.), it can create a tremendous amount of peer pressure to prevent physicians from signing on to these cases, and therefore make it significantly more difficult to get over the hurdles needed to file the claim.

The insurance review will eventually make it into the hands of researchers, I suspsect, and that will be a boon for the debate over malpractice rates the next time there's a malpractice crisis/bond market downturn.

The public members are generally political players, and, if it's anything like the process that the Massachusetts board had when I was out there, they are not loose cannons out to prosecute every doc with a complaint filed against them. It's a largely symbolic gesture that the public has some say in overseeing physician licensure, and not just the so-called foxes guarding the henhouse. The board will take some time to train up the public members, but they're not just grabbing folks off the street.