Medical Malpractice Fights Go to Voters in Four States

Voters in four states will pick sides Nov. 2 in the contentious debate over costly malpractice insurance premiums for doctors, an issue rife in statehouses across the country this year.

Physician and health-insurance groups in Florida, Nevada, Oregon and Wyoming are lobbying voters to approve tort reform measures placed on the ballot by citizens’ initiative or by the legislature, in the face of fierce resistance from trial lawyer groups. Competing measures are being touted by trial lawyers and certain consumer groups in two of those states.

The upcoming election marks the first time that voters in multiple states will be asked to weigh in on the complex issue. Because there are no laws limiting the amount groups can pump into promoting ballot measures, both sides are spending millions of dollars for victory, observers said.

In addition, the issue of whether or how to control medical malpractice premiums is dividing Democratic and Republican candidates in governors’ races in Missouri, Washington and West Virginia and in a handful of other state contests.

Voters are being inundated with television advertisements, such as one in Nevada that pounds home images of doctors wandering out of the state. Another in Illinois, where the issue was hot last legislative session, superimposes images of sharks to portray trial lawyers as predators in a feeding frenzy. Other ads with the slam of a gavel tell voters to end frivolous lawsuits and hold big insurance companies more accountable.

“There’s a lot of positioning on both sides, and voters will have to be fairly engaged to figure out which of these (ballot iniativies) passes or doesn’t pass the smell test,” said Kristina Wilfore, executive director of the Ballot Initiative Strategy Center, a labor-backed group in Washington, D.C.

In 2003, Texas voters were the first to approve medical malpractice reforms by way of the ballot. By a razor-thin margin, they authorized the Legislature to enact statutes limiting liability damages in malpractice cases. In 24 other states, legislatures have acted to cap that type of jury award.

While the ballot measures are being fought on the local level, they’re important components of a national debate over frivolous lawsuits and rising health industry costs.

President Bush is supporting federal legislation to impose a cap of $250,000 on jury awards for pain and suffering in medical malpractice suits. The Democratic presidential ticket which includes vice presidential hopeful Sen. John Edwards, a former trial lawyer from North Carolina opposes such caps.

Capping jury awards for non-economic damages, which are different from medical expenses or lost wages, remains the most controversial way to address malpractice woes and sits at the center of debate in each of the four states. Many states’ caps are modeled after a California law enacted nearly 30 years ago that often is credited with stabilizing the insurance market there.

Physicians and insurers commonly blame excessive jury awards for high malpractice premiums. But lawyers say caps undermine victims’ ability to get fair compensation, and they hold the insurance industry responsible for rising costs.

• In Florida, voters will decide whether to put a ceiling on lawyers’ share of malpractice settlements. The Legislature capped malpractice awards at $500,000 in August 2003 after battling over the issue during three special sessions. The ballot also includes a separate measure that would take licenses away from physicians who have three malpractice rulings against them. A third initiative would make it easier for patients to access their medical records.
• Nevada voters will choose whether to strengthen a $350,000 cap on non-economic damages that the Legislature passed in 2002 by eliminating loopholes, such as an exemption for gross negligence. Lawyers opposing the measure unsuccessfully sued to try to remove the question from the ballot. A competing measure would require insurance companies to reduce premiums on auto, homeowner and medical liability insurance, and another measure would change the state Constitution to outlaw frivolous lawsuits and hold lawyers more accountable.
• In Oregon, ballot Measure 35 would amend the state Constitution, which currently prohibits damage caps, and would impose a $500,000 limit on malpractice awards. If approved, the measure would take effect Jan. 1, 2005. So far, doctors’ and lawyers’ groups in Oregon together have spent about $7 million on their campaigns, the Associated Press reported.
• And in Wyoming, where the Legislature met in special session this summer to address malpractice, lawmakers are asking voters to amend the state Constitution to let the Legislature enact limits on damages for pain and suffering. A separate ballot measure would require that medical malpractice claims be examined by a medical review panel before a person is able to sue.

The problem in Wyoming is that too many doctors are retiring and the state can’t recruit replacements because insurance premiums are too high, said Wyoming state Sen. Charles Scott, a Republican who supports allowing caps. If the ballot measure fails, “some of my constituents are going to be going to Colorado for their primary care, crossing state lines and (making) a three- or four-hour drive,” Scott told Stateline.org.

If anything unites the warring interest groups, it’s fear that voters are simply confused.

“When voters confront an issue that’s confusing … the tendency is to vote no,” said Jennie Bowser, who tracks state ballot initiatives at the National Conference of State Legislatures in Denver.

Gail Tuzzolo, who is managing the campaign to approve two Nevada initiatives, said voters are befuddled by the opposing television ads and media onslaught. “Voters are having a hard time deciding whom to believe,” she said.

Joe Heck, a physician running for the Nevada state Senate as a Republican, said he favors tort reform and has been trying to educate voters in his district about the issue when he campaigns door-to-door. “It’s more becoming an issue between trial lawyers and physicians than what’s important to the people,” Heck told Stateline.org in a telephone interview.

In governors’ races, the issue is splitting candidates down party lines in Missouri, Washington and West Virginia, all states where medical malpractice already has been debated by the legislature.

In Missouri, where outgoing Gov. Bob Holden (D) vetoed a bill that included malpractice caps earlier this year, the GOP gubernatorial nominee, Secretary of State Matt Blunt, favors liability reforms including a $250,000 damage cap, while his Democratic opponent, State Auditor Claire McCaskill, advocates other solutions to lower insurance premiums.

“Governors races are so local that unless it’s already on the local agenda, it’s not really being put on the agenda,” said Jennifer Duffy, who is tracking the nation’s 11 gubernatorial elections for the Washington, D.C.-based Cook Political Report.

The issue also is also making waves in Illinois, where medical malpractice debate raged in the Statehouse in 2004 and ads by the state Chamber of Commerce claim trial-lawyer “sharks in fancy suits are getting rich at our expense.”

The issue is dividing judicial candidates in the state’s 5th Supreme Court district. Democrat Gordon Maag, who is supported by trial lawyers, is running against GOP candidate Lloyd Kramer, who has the backing of doctors’ groups, the Chicago Tribune reported.