Overview of Initiatives 330 and 336

On election day the voters of Washington will be presented with two ballot measures that propose far-reaching changes in the state’s medical liability laws. Supporters of Initiative 330 say their proposal is needed because costly lawsuits are fueling the rise in insurance premiums and causing doctors to reduce or close their practices. The trend, they say, is contributing to higher health care costs and a shortage of doctors, especially in key specialties like obstetrics, neurosurgery and trauma care.

Supporters of Initiative 336 counter that the problem lies not with the size of jury awards and insurance costs, but with bad doctors who, through mistreatment or neglect, injure their patients. They say full access to the courts for injured patients is needed to redress harm done by doctors and to keep negligent doctors from continuing to practice. They also say increased regulation of malpractice insurance rates is needed to keep premium costs in line.

Initiative 330 and Initiative 336 take sharply divergent approaches to medical liability reform. These competing measures have been placed on the November ballot by two professional groups, doctors and lawyers, with different interpretations of whether there is a medical liability “crisis” in Washington and what is the proper role of the courts in addressing wrongs committed by health care practitioners.

Their dispute is one of degree. Both groups agree that injured patients should be able to seek justice and fair compensation in the courts. Both agree that poor-performing doctors should be held legally accountable for their actions and, if necessary, barred from practicing medicine. Both agree that good doctors should not be put out of business by rising insurance costs and that malpractice premiums should be set at a reasonable level.

Their disagreement centers on a key question: Are medical liability lawsuits a significant driver of health care costs and, if so, what policy changes would best reduce this effect? Specifically, doctors and lawyers disagree about whether Washington, like other states, should adopt a cap on non-economic damage awards and a limit on the percentage of an award that can be paid to an injured patient’s attorneys. These different viewpoints are reflected in the texts of Initiatives 330 and 336.

Non-economic damages are the part of a medical malpractice settlement that compensates an injured person for pain, suffering and emotional distress. By their nature non-economic damages are difficult to measure. How a jury assesses such damages is unpredictable and the cost of non-economic awards varies widely even among cases with similar facts.

This study explains the main provisions of each initiative, and looks at whether and to what extent medical liability suits contribute to rising health care costs. This study also gives real-world examples of how Washington physicians have been affected by higher liability insurance costs, presents the findings of national studies on the effectiveness of non-economic damage caps, and examines the experience of California, Texas and other states that have adopted restrictions on medical liability awards.

The purpose of this study is to explain the issues involved, untangle the technical provisions of these competing initiatives, and clarify the confusing aspects of medical liability reform so voters can make an informed decision on election day.

Read the full Policy Brief here