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Washington Medical Malpractice Act, Initiative 336 (2005)

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The Washington Medical Malpractice Act, also known as I-336, was on the November 8, 2005 election ballot in Washington as an Initiative to the Legislature, where it was defeated. This act would have required notices and hearings on insurance rate increases, established a supplemental malpractice insurance program, required license revocation proceedings after three malpractice incidents, and limited numbers of expert witnesses in lawsuits.

Election results

Washington Initiative 336 (2005)
ResultVotesPercentage
Defeatedd No1,076,91860.22%
Yes 711,443 39.78%

Election results via the Washington Secretary of State.[1]

Text of the measure

The language appeared on the ballot as:[2]

Initiative Measure No. 336 concerns medical malpractice, including insurance, health care provider licensing, and lawsuits.

This measure would require notices and hearings on insurance rate increases, establish a supplemental malpractice insurance program, require license revocation proceedings after three malpractice incidents, and limit numbers of expert witnesses in lawsuits.

Should this measure be enacted into law?[3]

Fiscal impact statement

The 2005 State of Washington Voter Pamphlet lists the fiscal impact statement as follows:

Summary of Fiscal Impact

Initiative 336 would result in additional costs in the state Office of the Insurance Commissioner – ranging from $384,000 to more than $639,000 a year – due largely to changes in requirements affecting field examinations of insurers. The Initiative also is expected to increase by $58,000 the state Department of Health’s costs for licensing health care providers. The Initiative also could prompt an increase or decrease in court filings or hearings, but conflicting research offers no clear guidance for estimating the magnitude of the Initiative’s fiscal impact on courts.

Assumptions for Fiscal Analysis of I-336

Higher costs in the Office of the Insurance Commissioner would result mostly from new responsibilities that the Initiative places with the Insurance Commissioner, and which are related to the Supplemental Malpractice Insurance Program (SMIP) and its Board of Governors. These new responsibilities would result in new costs for conducting full examinations of all insurers’ finances and operations at least once every three years, collecting and distributing to the Department of Health all medical malpractice claims data, and preparing annual reports of all medical malpractice claims data. In addition, the Office of the Insurance Commissioner would incur new costs related to public notice and/or public hearings for certain insurance rate filings, and from potential, additional judicial proceedings.

Higher costs in the Department of Health are due in part to the Initiative’s requirements for investigation and regulation of health care professionals found liable in court for three or more medical malpractice claims paid within the most recent five year period in amounts of $50,000 or more. In addition, new costs would arise from new requirements related to processing medical malpractice claims data from the Office of the Insurance Commissioner and reports of medical malpractice verdicts or settlements in excess of $100,000 from the courts.

The Initiative may impact court system litigation costs. Various studies have been conducted to determine how changes in law affecting tort liability and insurance can affect costs for courts, insurance premiums and health care. However, individual study results vary widely, predicting no change or both lower and higher costs in these areas. Due to the conflicting research, there is no clear guidance for estimating the magnitude of the fiscal impact of potential reductions on court costs or insurance premiums.

Sections of the Initiative that have the potential to increase court activity include: conferring standing on any person to file an action challenging the decision of the Insurance Commissioner on a requested health insurance rate increase; failure of providers to supply, upon request, information regarding the provider’s experience with particular treatments, if violations result in civil liability; allowing a process to increase the number of experts; and allowing sanctions for violation of the attorney certification requirements.

Sections of the Initiative that have the potential to decrease court activity include: requirements that attorneys certify their claims are not frivolous; limits on the number of expert witnesses to two for each side; and requirements that medical malpractice actions be supported by an expert’s certificate of merit.[3]

Support

These arguments in support appeared in the official State of Washington Voter Guide:[4]

I-336 FOR BETTER, SAFER HEALTH CARE – HOLDS HMOs, THE INSURANCE INDUSTRY, LAWYERS AND DOCTORS ACCOUNTABLE
  • I-336 is the only initiative to: Crack down on doctors whose negligence has been found to cause serious injury or death three or more times
  • End secrecy in legal proceedings so the public can learn the safety records of hospitals, clinics, and doctors
  • Require insurers to pass savings to consumers
  • Increase patient safety
  • Require lawyers to have doctors certify a lawsuit as legitimate before filing a medical negligence lawsuit
  • Punish lawyers who file frivolous lawsuits

Three Strikes and You’re Out

I-336 prohibits doctors from practicing medicine in Washington if their negligence has been found by a court of law to have seriously injured or killed at least three patients.

I-336 WOULD FINALLY GIVE YOU THE RIGHT TO KNOW GOOD DOCTORS FROM BAD

Currently, you have no right to know about negligent HMOs, hospitals, or doctors. The insurance industry, HMOs, and hospitals can keep serious medical negligence a secret by forcing injured patients into “gag orders.” I-336 would change that by giving you the right to know about negligent HMOs, hospitals, and doctors.

INSURANCE COMPANIES WOULD HAVE TO JUSTIFY RATE INCREASES, HOLDING INSURANCE RATES DOWN

The insurance industry would have to open their books to the public to justify rate increases. The Insurance Commissioner could deny unwarranted increases.

I-336 is the only initiative that cracks down on frivolous lawsuits.

Other initiatives treat serious lawsuits over true medical negligence that causes severe injuries the same way as frivolous lawsuits. I-336 is the only initiative cracking down on frivolous lawsuits without closing the courtroom doors on true and serious medical negligence cases where someone lost a child, or is confined to a wheelchair for life.

VOTE YES I-336 – THE ONLY INITIATIVE THAT PROTECTS PATIENTS AND LOWERS INSURANCE RATES FOR DOCTORS

For more information, visit www.bettersafercare.org or call 206.250.2746.

Rebuttal of Statement Against

Here are just a few of those supporting I-336:

  • Many leading nurses and health care professionals
  • Major senior organizations
  • Veterans
  • Firefighters.

Why? Because I-336 is the only measure that will actually reduce insurance rates and improve patient care. Other measures help the insurance industry at patients’ expense. Join a growing coalition of health care professionals, seniors, and emergency rescue workers. Vote yes on I-336.[3]

The argument in support was prepared by Dylan Malone, Tom Campbell, Karen Keiser, Rick Bender, Steve Dzielak, and Cheryl Marshall.

Opposition

These arguments in opposition appeared in the official State of Washington Voter Guide:[5]

I-336 IS A PERSONAL INJURY LAWYER INITIATIVE

Just when voters are being asked to enact meaningful reform to lower malpractice costs, greedy personal injury lawyers have responded with a cynical attempt to punish good doctors and make even more money from lawsuits. I-336 helps the lawyers: they wrote it, they lobbied for it, and personal injury lawyer money funds it. According to the State Public Disclosure Commission, I-336 has received nearly every dollar of funding from one source: the Washington State Trial Lawyers Association! Behind the smoke screen, I-336 will reduce access to care and drive more doctors out of state. Its sole purpose is to benefit personal injury lawyers! The lawyers wrote I-336 to guarantee themselves even more money filing lawsuits against good doctors – even those who’ve done nothing wrong.

I-336 CREATES MORE BUREAUCRACY

I-336 establishes a new state-run, taxpayer-financed, “supplemental” insurance program. Doctors would pay a second “excess” liability premium. It creates another deep pocket for personal injury lawyers to sue – that’s why they’re willing to spend whatever it takes to pass I-336.

I-336 PUTS PERSONAL INJURY LAWYERS FIRST, PATIENTS LAST

I-336 does nothing to change the legal system that is driving good doctors out of practice and away from Washington. I-336 is a smoke-and-mirrors solution to a life-and-death problem. The bottom line: this initiative was written by lawyers, for lawyers – if it passes lawyers win, patients, doctors, and nurses lose. Vote No on I-336.

For more information, visit www.yesoni330.org or call (toll free) 877.740.0177.

Rebuttal of Statement For

The “three-strikes rule” won’t actually “crack down” on bad doctors or frivolous lawsuits. The standard for “frivolous” lawsuits is so high it’s nearly meaningless. The rule for doctors is nothing more than an effort to extort more money from good physicians for the benefit of personal injury lawyers. Like most of I-336, “three strikes” is just another soundbite masquerading as reform. Put patients first: choose real reform. Vote yes on I-330 – no on I-336.[3]

The argument in opposition was prepared by Kenneth Isaacs, Marianne Tefft, Cynthia Markus, Dana Wallace, and state senator Timothy Sheldon.

Path to the ballot

Initiative 336 was filed on August 30, 2004 by Lawrence B. Shannon. 300,776 signatures were submitted to qualify the measure for the ballot to be sent to the legislature. When the legislature did not take action on the proposed legislation, the measure was placed on the ballot as provided by the state constitution.[6]

See also

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