A record amount of money is pouring into Washington state over two medical malpractice reform measures on the ballot. (Angela Galloway, "Dueling over medical malpractice", Seattle Post-Intelligencer, Sep. 8). Initiative 330 caps attorneys' fees in malpractice cases, non-economic damages caps as high as $1.05 million, allows voluntary arbitration of claims, provides for the admissibility of evidence of collateral source payments, and places limitations on joint and several liability. In response, the trial lawyers have put up a Potemkin measure on the ballot, Initiative 336, calling for an investigation of insurance fees, the creation of a state-run excess insurance program that will presumably replace those insurers who leave the state under the new law, a fig leaf requiring certificates of merit and barring "frivolous" suits ("frivolous" being defined narrowly enough that anyone filing a certificate of merit will never meet the standard), and, worst of all, the three-strikes rule for doctors sued for malpractice. If this sounds familiar, it's because Florida had the same debate last year (Nov. 29, Nov. 4, Nov. 2, etc.). Then, after both sides' Florida measures passed, AP noted about the three-strikes law:
Legal experts say the measure could let loose a flood of malpractice suits. Doctors say it will scare some physicians away from Florida while forcing others to reach quick malpractice settlements to avoid a "strike" against them.
"It has branded the state as probably the most unfriendly state for physicians," said Robert Yelverton, a Tampa doctor. ...
Lester Brickman, a professor of legal ethics at the Cardozo School of Law of Yeshiva University in New York, said the lawyers "trumped the doctors" with the three-strikes amendment, because lawyers will rush to sue in hopes doctors will settle to avoid a "strike" on their record.
"You'll see hundreds of these claims," Brickman said. "In the next 10 years virtually every doctor in the state of Florida will have been sued."