April 2006

And Talk We Did

by S. Brooke Taylor, WSBA President

And talk. And talk. Five meetings in the governor’s office (at least two hours each), in the space of 30 days, with legislative deadlines looming. And between those meetings were hours of small group negotiations working on specific areas of disagreement. At the end of the day, the citizens of Washington were well served.

Some may recall my January column, entitled “An Open Letter to Physicians — We Need to Talk.” The column concluded with this entreaty: “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 set forth below.”

Based upon the calls and e-mails I received, this was seen by most as a long shot, perhaps even wishful thinking. But after the bruising initiative battles of the fall, with two extreme measures resoundingly rejected by the voters after record-setting expenditures by the combatants, it seemed like an idea whose time had come. Let’s sit down and talk, face-to-face — what a concept!

The very first official response I received, even before I had seen the January Bar News in print, was an e-mail from the executive director of the Washington State Medical Association (WSMA), agreeing that it was time to talk.¹ And talk we did — beyond my most optimistic expectations. But it could not have happened without the involvement of Governor Christine Gregoire. What I had spawned was a timely idea without a home, and she gave it a home, a structure, and the stature of her office. Before I could figure out how I would respond to the WSMA, all stakeholders had been invited to the first meeting in the governor’s office on January 17, and the rest is history. SHB 2292 (also called “Plan B” during the 2005 session), as amended through this process, is now the law of the state of Washington. And it is sound public policy.

The new law is not perfect, and leaves much for future negotiations. Nobody got everything they wanted. But it is a solid start toward achieving the goals of improved patient safety, a reduction in insurance costs, efficiencies in the system, and the avoidance of frivolous lawsuits. And just as important as any of the substantive changes are the new reporting requirements for adverse events and closed claims. As the discourse continues in the future, and it surely will, we will have solid, empirical evidence on which to base future policy decisions.

The WSBA was represented at the table by your president and Gail Stone, our superb director of legislative affairs. We did not consider the WSBA to be a stakeholder and were not active in the negotiations. We were there, to some extent, as a courtesy, since we had invited the process, and, to some extent, as reporters for our members. Through our exhaustive process, the WSBA Legislative Committee and Board of Governors had twice voted to support SHB 2292 in its original form, as a meaningful and balanced compromise. During the session, Governor Gregoire knew that any substantive changes in the bill would require a new review and approval by the BOG Legislative Committee if the important WSBA endorsement was to continue. Ultimately, we had five hours after the conclusion of our fifth and final meeting on February 17 to disseminate the substantive changes to our committee and set up an emergency conference call to gain that essential approval. This allowed the WSBA to stand shoulder-to-shoulder with the governor, the insurance commissioner, WSMA, WSTLA, Physicians Insurance, and the Washington Hospital Association in support of this measure at the press conference on January 20, and later that day in testimony before the Senate Health & Long Term Care Committee. Members of that powerful committee seemed stunned almost to the point of amusement as these strange bedfellows paraded to the podium to voice unanimous support for a medical malpractice reform package. One senator was heard to comment that “I never thought I’d see the day!”

It was a historic moment and a historic collaboration. I hope that you share the pride I felt in having our Association take a leadership role. Singling out any individual or group for credit is always dangerous, but necessary here because of the contribution of the two groups that were perceived as being the key antagonists in this decades-long battle: the doctors and the trial lawyers. Both groups honored my plea that “those with an axe to grind will have to remain in the hallway.” The WSMA sent President Peter J. Dunbar, M.D., and Past-president Kenneth H.Z. Isaacs, M.D., who were passionate and articulate advocates for their colleagues, and started the discussions by taking caps on damages and attorney fees, the traditional deal-killers, off the table. This huge move on their part signaled to us all that the opportunity was upon us, and we had better seize the moment.

WSTLA sent John Budlong, Joel Cunningham, and Reed Schifferman, who once again made me proud to be a lawyer. I never thought I would see the day when WSTLA would agree to the exclusion of apologetic admissions of fault, and the admission of collateral source evidence, but they recognized quickly that these were critical issues for the medical community, and that major concessions on one side called for major concessions by the other. They came in good faith to get something done, and skillfully avoided being either offensive or defensive in articulating the positions important to their members.

Finally, credit must go to Governor Gregoire for her extraordinary leadership in arranging and mediating this process. She chaired all five sessions, and there was never a hint of partisanship in her conduct of the meetings. What did come through loud and clear was her knowledge of the complex issues on the table, and her passion for affordable, accessible health care. She certainly did not need to risk any precious time or political capital in what was obviously a high-risk venture. We should all be grateful she was willing to take the risk.

One final note of gratitude goes to one of the WSBA’s 2005 “Outstanding Elected Official” award winners, Representative Pat Lantz, who sponsored SHB 2292 in the House, got it passed out of the House both in its original version and as amended, and never gave up. Those of us in the legal community are blessed to have her steadfast voice in Olympia. 

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.

NOTES

1.  I am grateful to attorney Gary L. Morse, general counsel for Physicians Insurance, who made sure this invitation in a legal journal got into the right hands.