Doctors, lawyers make deal on medical-malpractice bill

OLYMPIA — A breakthrough agreement on medical-malpractice laws, unveiled Monday by Gov. Christine Gregoire, was the result of confidential negotiations in which she kept doctors and lawyers talking just months after they spent millions of dollars attacking each other in a brutal political campaign.

Gregoire said she was able to negotiate a bill, which the Legislature is expected to approve, because all sides were willing to "leave the rhetoric outside the room."

Under the compromise, doctors would be able to apologize for a medical mistake without it being used against them in court. Mediation would be mandatory before a lawsuit could proceed, and if it went forward, both sides could agree to binding arbitration to avoid costly litigation. Juries also would be able to hear for the first time if a patient suing a doctor already had gotten money for the claim from an insurance company.

Left out of the talks, though, was doctors' earlier demand for limits on the amount of damages a jury could award in a malpractice case.

The doctors' decision not to push that was key to allowing agreement on one of Olympia's most vexing issues, Gregoire and others said.

"No one got everything they wanted, myself included," the governor said.

Legislators who have wrestled with the issue for four years and have been unable to reach agreement were left out of the negotiations. Gregoire met individually with the interest groups, then led five negotiating sessions between Jan. 19 and last Friday.

Under the compromise, the state also would be able to collect detailed statistics about malpractice claims. State Insurance Commissioner Mike Kreidler said that will mean hard numbers will replace campaign rhetoric, because, he said, "This debate will take place again."

There was a clear sense that while the compromise was a breakthrough, all sides want more done.

"We think it's a good first step, hopefully a good first step toward a medical-liability system that will be significantly reformed in the future so that it reduces preventable errors, promotes patient safety, compensates all injured parties fairly and reduces significantly the legal and administrative costs of the current system," said Randy Revelle, senior vice president of the Washington State Hospital Association.

Doctors and their allies — including hospitals, insurance companies and the pharmaceutical industry — had contended that big jury verdicts were driving up insurance rates and forcing some physicians to quit performing risky procedures. Lawyers, meanwhile, said the real problem was a lack of oversight of bad doctors and profit-hungry insurance companies.

In campaigns last fall for competing ballot initiatives, proponents spent more than $14 million as doctors accused lawyers of being greedy and looking for "jackpot" jury verdicts, and lawyers painted doctors as pawns of the insurance industry and the White House.

The doctors' proposal, Initiative 330, would have limited plaintiffs' attorney fees and capped pain-and-suffering awards in medical-malpractice cases. It also would have allowed providers to deny treatment to patients who refuse to sign agreements to resolve malpractice claims through arbitration rather than in court.

The lawyers' proposal, Initiative 336, called for revoking the license of doctors who lost three malpractice verdicts in 10 years and requiring public hearings on malpractice-insurance rate increases.

"The governor and this group she has worked collaboratively with has actually shown us the high art form of compromise," said Rep. Pat Lantz, D-Gig Harbor, chairwoman of the House Judiciary Committee.

The agreement was reached Friday and announced Monday morning at a news conference where Gregoire was surrounded by negotiators representing the bar association, trial lawyers, doctors, hospitals and malpractice insurers.

"This will make a better place for patients and a better place for physicians and a better place for all of us," said Dr. Peter Dunbar, president of the Washington State Medical Association. "To get a group that historically has been quite antagonistic toward each other to come to agreement, I think, is a considerable achievement and largely her responsibility."

John Budlong, representing the Washington State Trial Lawyers Association, thanked Gregoire "for her gift of bringing very opposed interests together." He said the bill would improve patient safety and reporting by insurance companies and help improve how cases are handled in court.

The compromise proposal has been incorporated into House Bill 2292 and is expected to be approved by the Legislature before it adjourns early next month. The key committee chairmen in both houses — both Democrats — support the bill, and Republican leaders issued a statement Monday endorsing the compromise, though saying more still needs to be done.

Many of those on hand for Gregoire's announcement said the provision in the compromise that allows doctors to apologize will be the piece the public most notices.

Under current law, if a doctor or hospital apologizes to a victim of a medical mistake or to the family of a deceased victim, that can be used at a trial.

Under the bill, doctors would have 30 days from the discovery of an incident "to pretty much say anything," said Dunbar, of the state medical association. Apologies would be inadmissible in court.

Gregoire said that in her years as attorney general she saw contentious lawsuits where lawyers would be arguing and a family member would say, "All I want is for someone to say they're sorry."

"When someone loses a loved one or a loved one is seriously injured, they want to know, if a mistake has been made, that someone will say, 'I share your pain. I want you to know how sorry I am that this happened.' "

Lawmakers on hand for Monday's announcement said medical-malpractice changes were too complicated to be handled by citizen initiatives on the ballot.

"We'd like to think that the voters know everything," said Sen. Adam Kline, chairman of the Senate Judiciary Committee. But, he said, the issue was better dealt with by "a smaller number of people."

David Postman: 360-943-9882 or

Seattle Times reporter Ralph Thomas contributed to this report.

Key provisions of the bill

• Doctors would be able to apologize for a medical mistake without the apology being used against them in court.

• Juries would be allowed to hear if an injured patient had received payment for the claim from an insurance company or other source. Currently that is inadmissible in court.

• Mandatory mediation would be implemented when a malpractice claim is filed. Before going to court, both sides would have to agree to mediation, though the results would not be binding. Once a lawsuit is filed, there would be an option, if both sides agree, of binding arbitration — allowing the parties to avoid a court fight.

• Plaintiffs' lawyers would be required to have malpractice claims reviewed by a medical professional from the discipline involved in the case. That is seen as a way to avoid frivolous lawsuits.