Sherri votes...
and so should you!
November 2005:
This measure would: require notices and hearings on insurance rate increases; establish a supplemental malpractice insurance program; require license revocation proceedings after three malpractice incidents; and limit numbers of expert witnesses in lawsuits
I recommend a NO vote on Initiative 336.
Initiative 336, like Initiative 330, is a malpractice reform initiative, but from a different perspective. Where I-330 seeks to cap awards, I-336 proposes to make it more difficult to raise premiums, weed out bad doctors, set up a supplemental malpractice insurance program, limit the number of expert witnesses in a malpractice suit, and require a certificate of merit before proceeding with a malpractice suit. Quite a grab-bag of solutions!
As I discussed in my analysis of I-330, it’s far from clear that there really is a malpractice crisis. Premiums have been rising steeply the last several years, but it’s not clear whether that is because of a fundamental difference in the market or just the same cycle we’ve seen before. I recommended against I-330 because whether there is a crisis or not, the solution proposed would have at best a short-term impact.
The methods proposed in I-336 probably would serve as a longer-term drag on malpractice premiums. One of the proposals allows the state insurance commissioner to hold public hearings on rate increase proposals. California, which requires public hearings for rate hikes larger than 15%, has seen lower malpractice premiums. While the state insurance commissioner does already have the authority to regulate rate hikes, a public hearing for a large rate hike isn’t likely to make an insurance company look good, and discourages large rate hikes.
The supplemental malpractice insurance program would create a secondary insurance program to cover award costs above what the primary insurer covers. This program would be voluntary, state-run, and paid for with premiums. Potentially, this could allow doctors to buy less primary coverage and rely on the state coverage above that amount, rather than having to buy primary coverage to cover all their liability. It’s sort of a catastrophic coverage for malpractice.
If I-336 stopped there, I’d probably support it. While I question whether there really is a crisis or just a short term spike in the market, public hearings for major rate hikes will tend to smooth out those spikes, and a supplemental state-run insurance plan for the rare large awards would likely be cheaper than relying on the primary insurer.
But the grab-bag of solutions goes on. I’m particularly troubled by the "three-strikes, you’re out" solution proposed for weeding out so-called bad doctors. I-336 could result in license revocations for a doctor with three adverse verdicts in 10 years. While such a doctor is indeed one who probably shouldn’t be practicing, very few doctors would fall into this category. However, the possibility of this happening would very likely push doctors towards settling malpractice claims, whether merited or not, to avoid the risk of an adverse verdict, especially in high-risk specialties. The public disclosure requirements of this initiative also would tend to discourage the kind of peer review that usually goes on in a hospital. Peer review, to be effective, requires a free exchange of views; if that information might be released to a potential litigant, nobody’s going to say anything, and we all lose.
I-336 offers too many solutions for too many problems. Are malpractice premiums too high? Require public hearings! Are too many incompetent doctors practicing? Revoke their licenses! Are frivolous lawsuits being filed? Require a certificate of merit! If there are really this many problems causing a malpractice premium crisis, then we need to step back and look at a bigger picture, rather than just patching all the holes we think might be leaking right now.