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The court rules for lawsuits, defensive medicine

Post by Patrick O'Callahan on July 5, 2010 at 1:12 pm |
July 5, 2010 1:14 pm

This editorial will appear in Tuesday’s print edition.

In survey after survey, doctors acknowledge that they order – among other things – expensive and unnecessary scans and tests to protect themselves against potential lawsuits.

One way to curb the costs of such “defensive medicine” is to encourage alternatives to litigation. Early out-of-court settlements are much more reliable in providing compensation to injured patients without incurring the expense of attorneys dueling for years in an adversarial justice system.

Unfortunately, the Washington Supreme Court last Thursday overturned a modest – almost pathetically modest – attempt to prevent disputes with doctors from escalating into lawsuits.

The Legislature in 2006 required that physicians be given 90 days notice before malpractice lawsuits are filed against them, breathing room designed to let doctors or insurance companies offer settlements or otherwise work things out before complaints go nuclear.

Patients were not denied their day in court; they could still sue to their hearts’ content. They just had to give potential defendants an opening to avoid lawsuits with mutually acceptable agreements. A 90-day hiatus is almost trivial compared to the years some plaintiffs must wait for their cases to be resolved in an actual courtroom.

Writing for the majority, Justice Charles Johnson noted that the court had made no provision for such a cooling-off period in its procedural rules for filing lawsuits, and the court alone – not the Legislature – had the prerogative to write those rules. Separation of powers and all.

Writing for the minority, Justice James Johnson noted that the 90-day provision in no way contradicted the procedural rules, and that the elected Legislature and governor should have been given more latitude in attempting to bring down health care costs.

James Johnson made another important point: Existing law has long required that citizens wait 60 days before filing lawsuits against cities, counties and government agencies. The logic for that –
encouraging settlement – is precisely the same.

Why are doctors denied a privilege that the government has given itself? A more worrisome question: Is the court now poised to strike down the 60-day wait that helps avert lawsuits the taxpayers wind up paying for?

If the supreme court really does have absolute procedural authority, it presumably could impose a 90-day hiatus of its own. But the hiatus serves a public policy: encouraging settlements. Separation of powers makes policy-making the Legislature’s bailiwick – not the court’s. Thursday’s decision thus bites itself in the tail.

James Johnson wrote, “The majority’s reluctance to respect the efforts of the executive and legislative branches to address the malpractice crisis puts these separate constitutional powers in a difficult position of finding ways to manage problems caused by a crisis without affecting our court rules.”

And “… this is an extremely challenging task. We should not render it hopeless.”
Exactly.

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