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Though it’s off-year election time, it’s far from quiet in Washington state, where the complex and highly charged issue of medical malpractice reform is going before voters in dueling ballot measures. Special interest groups placed the medical malpractice initiatives on today’s ballot and have sparred in multimillion-dollar campaigns. The techniques are right out of the playbook that has turned some state Supreme Court elections into heavily politicized, well-financed and hard-fought battles. In one corner are medical and business groups. Their Health Care Access Initiative 330 seeks, among other things, to cap noneconomic damages, restrict attorney fees, reduce the statute of limitations and eliminate the collateral source rule, which keeps juries from hearing about plaintiffs receiving compensation from other sources. In the opposite corner are trial lawyers, who wrote their own ballot initiative to counter the doctors’ efforts. The lawyers’ Better Safer Healthcare Initiative 336 would, among other things, remove a doctor’s license after three malpractice verdicts within 10 years, create a supplemental malpractice insurance fund and mandate reporting of settlements, judgments and payouts exceeding $100,000. The campaigns have been running television and radio ads and filling mailboxes with direct mail. According to the Washington state campaign disclosure agency, doctors and hospitals together had raised nearly $9.3 million, while trial lawyers had raised almost $6.6 million, as of late October. Fixing a troubled medical malpractice system, however, is not so clear-cut for voters, particularly when both sides are in attack mode. Competing measures often baffle voters, particularly if there is a lot of campaigning, said law Professor John G. Matsusaka, president of University of Southern California’s Initiative & Referendum Institute. “If voters are confused, they tend to vote no,” he said. Both measures have been criticized as insufficient, and the insurance commissioner said the issue belongs in the Legislature. Newspaper editorials are urging voters to reject both. In a growing number of states, doctors and lawyers have clashed over whether Supreme Court incumbents and challengers are friendly to business by restricting liability or favorable to plaintiffs by maintaining the tort system. In the Washington campaigns, the players and the message have a familiar ring. “Same people. Same fight,” said Rodney B. Ray, Washington State Trial Lawyers Association immediate past president and partner at Margullis, Luedtke & Ray of Tacoma, Wash. “It’s a national thing.” “Medical liability has been a very powerful issue in recent years,” said American Tort Reform Association President Tiger Joyce. If the Washington doctors’ proposal passes, the state would become the 22nd with restrictions on noneconomic damages, according to the group. A TEXAS TWANG The Washington effort is based on successes in Texas, Joyce said. In 2003, voters there passed a ballot measure that authorized the Legislature to cap damages. In 2004, voters in Florida, Nevada and Wyoming approved noneconomic damages caps, given the choice between similarly competing medical malpractice ballot measures, said Matsusaka of the University of Southern California. Though the caps passed, voters rejected other liability reform measures, so the picture is mixed. “I don’t think we’re seeing a trend,” Matsusaka said. “I don’t see a major push in a number of jurisdictions trying to pass medical liability by the ballot.” Washington state doctors turned to the ballot because their lobbying efforts with the Legislature were unsuccessful, said Tom Curry, president of the Washington State Medical Association. The doctors’ initiative is backed by a business group called Liability Reform Coalition, a Seattle umbrella organization of 70 companies, nonprofit organizations and other groups wanting to limit liability. “We’re everybody but the trial lawyers,” said the group’s executive director, Dana Childers. “This is a down payment to comprehensive liability reform,” she said. If the caps pass, then that would open the door to lobbying for other restrictions, she said. Though there may be some momentum, tort reform measures are still vulnerable to court challenges. Over the years, the Washington Supreme Court has not been friendly to statutory restrictions of medical malpractice laws. In 1998, the court invalidated an eight-year statute of repose for medical malpractice actions, saying it violated the state constitution.

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