January 2006

An Open Letter to Physicians — We Need to Talk

S. Brooke Taylor, WSBA President

To my medical colleagues: I realize this is a legal journal, but it is the only stump I have. I am hoping that some copies of this invitation will find their way into your hands. We need to talk.

Like most of my colleagues in the legal community, I have the utmost admiration and respect for physicians. I particularly like and trust my own. Many others are friends. My career as a lawyer has brought me in contact with dozens of others, and most have come across as competent, conscientious, and committed to their patients. As with all professions, there have been some exceptions, but these have been few and far between. It has been my experience that in the medical/legal context, those who have a basic understanding of what lawyers do are the most pleasant to deal with, and those who don’t have a clue the most difficult. (Your experience with lawyers has probably been similar.) With that experience in mind, I have usually attributed the occasional disagreement to a lack of understanding and let it go at that.

I’ll have to admit that the recent initiative campaigns have given me pause. Our members in the Washington State Bar Association were subjected to the most vicious, mean-spirited, and reprehensible attack on an entire profession ever seen in this state, all in support of I-330, and the campaign was sponsored and financed by physicians and their insurers. I know you didn’t write the television ads — I’m sure that was delegated to marketing experts who knew that attacks on “trial lawyers” had worked in other states — but you sponsored and paid for TV ads that engaged in the most negative stereotyping imaginable. By election day, all 29,000 individuals licensed to practice law in this state were simply referred to collectively as “the liars.” And I don’t know if you noticed it, but no matter how ugly the ads supporting I-330 got — and they got really ugly — the opponents of I-330 never responded in kind. The opponents focused on those extreme provisions that made the measure unacceptable to a majority of voters. There was no attack on physicians, individually or collectively, even though injury-causing medical negligence is at the core of this debate.

I expected most physicians to support I-330, and I expected most lawyers to oppose it, and that appears to have been the case, even though it is impossible to know how any individual or group actually voted. Based on the many letters and e-mails I received from our members regarding I-330, I know that some supported it, and I would guess that we had far more diversity in opinion on the subject in the legal community than was experienced in the medical community. This is not surprising, since very few lawyers are actually involved in medical-malpractice cases in any way, and our members therefore tend to base their analysis on policy issues rather than financial issues or turf protection. I was hoping some of you would stand up and say, “I support I-330, but I reject an advertising campaign which has as its theme the demonization of the entire legal profession, rather than the merits of the initiative.” Regrettably, it never happened.

But it’s time to bury the hatchet and move forward, because one thing that came through loud and clear on election day was that more than 40 percent of the voters supported one or both initiatives, and I think it is clear that our citizens want meaningful reform in the medical-malpractice litigation arena. I think it is equally clear that the voters rejected both initiatives because of provisions in each that were perceived as extreme.

Insurance Commissioner Mike Kriedler is an optometrist by training and has 16 years of experience in the state Legislature, and when he appeared before a meeting of our Board of Governors in June 2005 to inform our discussion of the competing initiatives, he gave us some advice which now, after the election results are known, seems even more appropriate than it did then. He told us that the competing initiatives involved very complex public-policy issues which did not lend themselves to the initiative process and should be debated and decided by our elected representatives in Olympia with input from all stakeholders. He urged the WSBA to support a legislative solution. I have talked to legislative leaders who tell me that, as a result of this last election, a critical window of opportunity now exists in the forthcoming legislative session, and meaningful reforms may be achievable.

So where does that leave us? As physicians and lawyers, we need to talk. We have so much in common, and so much to gain through working together. Members of both professions are required to go through rigorous training and testing; are required to continue their education and abide by very specific rules of conduct to maintain their license; make a living providing professional services to our customers; and are legally responsible for injury-causing mistakes, which motivates most of us to carry expensive malpractice insurance. We assume huge responsibilities on behalf of our customers, worry about untoward results, and grieve deeply when those occur. We have so much in common professionally, that for the good of the order, we should be collaborating rather than fighting.

There exists a very recent model of collaboration which shows that our professions can work together effectively to achieve a common good. In 2001, the WSBA and the King County Bar Association collaborated with the Washington State Medical Association, the King County Medical Association, and the Washington Pharmacy Association in support of legislation to reduce incarceration periods for minor drug offenders and to dedicate the resulting savings to meaningful treatment. I am sure that many legislators were astonished to see lawyers and physicians standing shoulder-to-shoulder in support of reform legislation, but the bill passed with overwhelming support, became law, and is working.

There is no reason why we cannot bring the same level of cooperation and collaboration to examining those issues raised by the competing initiatives, and work toward meaningful reform. There already exists a piece of compromise legislation that was considered during the 2005 session of the Legislature, had broad support, and was commonly referred to as “Plan B.” Some of the skilled lawyers who represent you in medical malpractice cases had a significant hand in drafting this legislation. It focuses on the core issues of patient safety, insurance reform, avoidance of frivolous claims, and the efficient resolution of doctor-patient disputes. It is devoid of the extreme provisions which lead to the downfall of both I-330 and I-336. It is, at least, a reasonable starting point.

I would like to explore the possibility of collaboration with the leadership of the medical community, and hereby extend an open invitation. I would like to sit down with a group of thoughtful and reasonable lawyers and doctors to discuss “Plan B” as a starting point, with the goal of making joint recommendations to the Legislature just as we did during the 2001 session. If this invitation is accepted, and such a meeting occurs, all those with an axe to grind will have to remain in the hallway. I want to deal only with those who are serious and open-minded about what it will take to bring significant improvements to the way we resolve these disputes. We need to talk, and time is of the essence. My contact information is below.  

Brooke Taylor may be reached at 360-457-3327 or sbtaylor@plattirwintaylor.com. If you would like to write a letter to the editor on this topic, please e-mail it to letterstotheeditor@wsba.org or mail it to WSBA Bar News, Attn: Letters to the Editor, 2101 Fourth Ave., Ste. 400, Seattle, WA 98121-2330.