February 2006
Letters to the Editor
How to get the M.D./J.D. talk started
In the January Bar News (“An Open Letter to Physicians — We Need to Talk”), President Taylor urged doctors and lawyers to bury the hatchet and begin to talk once again about the need to reform the medical malpractice system, in light of the failure of both I-330 and I-336, and the bruising (to lawyers at least) advertising campaign that preceded those defeats. As a practicing lawyer, and as a member of the Board of Trustees of Group Health Cooperative, I couldn’t agree more. However, that conversation needs to be grounded on very different assumptions than those which guided the initiatives the voters so wisely rejected, or which guided the conversations that have occurred over the past years.
Simply put, whatever system we build needs to be premised on two things: greatly improving patient safety and providing fair compensation to injured persons. Everything else should take, at best, a remote back seat. The need for these particular foundations is overwhelming. Countless authoritative studies repeatedly confirm that the United States’ medical liability system inhibits, rather than supports, what should be the paramount goals of reducing medical error and providing predictable, fair compensation for injured persons.
Once the foundations are agreed upon, the route to a resolution will be easier to find. Instead of arguing endlessly about who is more at fault for creating the current system, ideas can be classified in terms of whether they appear designed to improve the safety of the care that patients in our state receive and whether they will ensure fair compensation to those who are injured. We should reject out of hand any ideas that have only a tenuous connection to these goals. (I will avoid taking this opportunity to point out which portions of the two initiatives failed to have either of these goals in mind — suffice it to say there were many in each.) To the extent there is verifiable evidence that particular ideas may support these goals, and there is some, though concededly, not a lot, those ideas should receive the most intense consideration.
I suspect that some of the ideas presented in the initiatives may survive this inquiry. But I also anticipate that most of the ideas that will be part of the solution were never even mentioned during the initiative fight. It’s time to put our best minds to this, and doctors and lawyers should be among those at the table. Working together on something positive, like improving outcomes and safety for Washington’s citizens, and quickly and reliably compensating the injured, is the best way to heal the wounds our professions inflicted on one another over the past year.
Rosemary Daszkiewicz, Seattle
Are we part of the problem, or the solution?
I am jumping into the fray with regard to I-330 and I-336. Although neither initiative passed, the issue of tort reform will not go away and perhaps it is time for everyone to stop the rhetoric and start some hard thinking. As a land use lawyer, I neither sue nor defend doctors, but I am married to an ER doctor and know firsthand the effect of steadily increasing malpractice insurance premiums on many specialties. The more critical issue, however, is the negative effect and high cost of the constant, overhanging threat of malpractice suits. These are complicated, multi-dimensional issues that affect many fine and committed doctors, and can sour the practice of medicine and the doctor/patient relationship.
I am concerned by the Board of Governors’ stance and the article by the State Bar President (“Initiative 330 — The Medical Malpractice Initiative,” August 2005 Bar News), trying to sway all us dues-paying members on how to vote by presenting one side of the story, a side that often seems biased. I was recently home on a weekday, and saw an ad that spoke volumes. A convincing female attorney started by saying that if your child had a bad or catastrophic outcome at birth, you may be entitled to economic reimbursement throughout the life of the child and to call them to speak “mother to mother, dad to dad.” Sappy, but effective; unfortunately, it was horribly misleading as it said nothing about whether a health care professional actually committed malpractice or even made a mistake. And surely more attorneys than me are embarrassed at watching lawyers sink to this level of publicly pandering for business, even to the extent of selling their parenthood.
Bad things happen to the human body for a myriad of reasons, and even the best doctors cannot stop that fact. A very few incompetent or inattentive doctors make more than their share of mistakes. The fact that good doctors must make judgment calls daily under conditions most of us can only imagine is not an excuse; it is simply the reality of practicing medicine. The line between medical malpractice and a bad outcome or even an error in judgment can become blurred, and the scrutiny of the courtroom is not necessarily the best way to sort it out. We are not all entitled to money because something bad happened, and lawyers should not imply otherwise. Lawyers should not be seen as seeking out the “good” cases — i.e., those with a tragic outcome. It is no wonder that doctors and many citizens distrust the motives of the Trial Lawyers Association and the State Bar. The legal profession is not “clean” in this whole debate and to frame it as if we are the white knights simply trying to protect a citizen’s constitutional right to a civil justice system in the face of greedy, incompetent doctors is ludicrous. The issues are far more complex, and the civil justice system needs an intelligent overhaul, as do medical quality assurance programs and licensing procedures for physicians.
The fact that both initiatives failed shows that doctors and lawyers are not succeeding in getting their messages across, but it doesn’t make the problems go away. The State Bar is not representing all of us in this debate by taking political and seemingly self-serving positions.
Actually trying to work to solve the problem as the representative of all attorneys would have been a better approach, and one that I hope is advanced in the future. I have grown weary of defending the legal profession to medical professionals and regular folks. In looking out for our own interests of contingency fees and the potential for high awards, we might get a few bad doctors in the process but we harm the many good doctors and the future of medicine. The truth is that that the issues of negligence, high insurance rates, the practice of expensive CYA medicine, skyrocketing costs, and doctors leaving or avoiding high risk sub-specialties, defy a simplistic approach. Why do we then continue to be part of the problem, not the solution? It is indefensible.
Mary A. Winters, Port Townsend
A cautionary note
The December 2005 Bar News printed a letter from Daniel Radin, an Assistant Attorney General. He makes statements which are simply not accurate.
Mr. Radin writes, “Practitioners should first know that they can contact the Division of Child Support (DCS) to obtain accurate information about their client’s child support case ….” Excuse me, but “accurate” is not a word I would use to describe any activity of DCS, let alone financial records. In essence, Mr. Radin is saying that an attorney should ignore the Evidence Rules and treat DCS hearsay records as if they were first person testimonial quality.
Not only am I shocked that an attorney would deliberately endanger his brethren with such a risky statement but I submit that it is the opposite which is more likely to be true: that DCS financial records are inaccurate far too often to be deemed even prima facie accurate. I have seen deposition transcripts where DCS employees admitted that the figures they use are frequently inaccurate.
Mr. Radin also writes, “The newly amended §362(b) of the Bankruptcy Code exempts the following DCS actions from the automatic stay: the collection of support by wage withholding, license suspension, credit bureau reporting, and the interception of tax refunds.”
In regard to driver licenses, 11 U.S.C.§362(b) states that the automatic stay does not apply to “… (D) of the withholding, suspension, or restriction of a driver’s license, a professional or occupational license, or a recreational license, under State law, as specified in section 666(a)(16) of the Social Security Act; ….”
Subsection 666(a)(16) states: “authority to withhold or suspend licenses. - Procedures under which the State has (and uses in appropriate cases) authority to withhold or suspend, or to restrict the use of driver’s licenses, professional and occupational licenses, and recreational and sporting licenses of individuals owing overdue support of failing, after receiving appropriate notice, to comply with subpoenas or warrants relating to paternity or child support proceedings.”
It is clear that this federal statute merely requires that a State have authority in place (statutory law) and that it use that authority in appropriate cases. It does not in any way pre-empt or even compliment the license suspension scheme — in fact, it appears to acknowledge the exclusive authority of the State in licensing matters.
Mr. Radin likely has not ascertained what “uses in appropriate cases” means within the above statute. Since the entire chapter of the Social Security Act where this subject matter is located relates to Temporary Assistance to Needy Families (TANF), “appropriate cases” might well mean only those cases where a debt is owed to the State of where the State is party in a paternity proceeding.
For Mr. Radin to take the time to write to the Bar News and tell fellow attorneys exactly how DCS wants them to practice law while representing their clients in bankruptcy matters is simply stunning in its audacity. While I am appreciative for the advance notice of DCS litigation strategy in this area, some newly admitted practitioners might assume that an attorney representing the State would have to be correct. After all, it is published in the Bar News and he does work for the Attorney General’s Office, right?
DCS, in administrate hearings to determine if a person’s licenses should be certified to Department of Licensing for suspension, routinely presents its undependable financial records as conclusive proof to be rebutted. This is a total shift of the standard burden of proof, at the very least, but it also eliminates any meaningful challenge to the quality of admissibility of the evidence to be rebutted.
It seems that an attorney representing a client in a personal bankruptcy where child support issues are present would be well-advised to explore the use of an application for a stay to the bankruptcy court. The reality that this might not be the streamlined procedure that DCS and Mr. Radin desire should not dissuade practitioners from strongly advocating for the client’s interests.
In any event, DCS procedures and the enabling statutes for the license suspension program are constitutionally suspect. A case challenging the law is pending before the state Supreme Court.
Most importantly, if the figures presented in a license suspension hearing are suspect, then so are those same figures if they are being used in bankruptcy cases.
Additionally, Mr. Radin’s comments refer specifically to Chapter 13, the reorganization statute. It stands to reason that if the purpose of Chapter 13 is to get the debtor back in control of his finances, the last thing that the bankruptcy court (and the creditors) should want is to cripple or substantially impair the debtor’s ability to adhere to the payment plan.
Yet this is exactly what Mr. Radin plans to do — make the other creditors wait to get paid while DCS takes actions that deliberately increase the likelihood that those creditors will never get paid.
Something is wrong with this picture.
Lawrence Hutt, Parkland
