Physicians in Washington state are worried a recent state Supreme Court decision will make them sitting ducks for medical malpractice suits, not only while they're in practice but long after they retire.
The court ruled that the state's statute of repose--which shielded providers from malpractice suits brought more than eight years after treatment--was unconstitutional. As a result, patients will be able to bring suits years after treatment, and providers say they will be forced to keep medical records forever and carry malpractice insurance indefinitely. They're also worried the decision could drive up the cost of malpractice insurance.
"We're already swamped with paperwork and bureaucracy," says Mark Adams, M.D., a Bremerton, Wash., vascular surgeon and president of the Washington State Medical Association. "Medical charts are much bigger and thicker than they used to be. There's a lot more documentation, and it does become a logistical problem to keep and manage volumes of charts indefinitely."
The Washington Legislature passed the statute of repose in 1976 in response to a perceived insurance crisis. It's eight-year time limit was intended to restrict the number of malpractice claims, thereby keeping down the cost of malpractice insurance. If patients hadn't brought a suit or discovered the injury within eight years, there was no case. About half the states have similar time limitations, according to the National Conference on State Legislatures.
With the reversal of the law, Washington returned to its original statute of limitations, which, like most states', requires plaintiffs to bring suits within three years of treatment. Or patients can bring suits within one year of discovering the injury or damage, regardless of how long ago treatment was.
Cliff Webster, a lobbyist for the WSMA, defends the statute of repose and says its reversal will have a significant impact.
"The statute of repose was essentially the Legislature saying there is a certain period of time after which-whether or not you have a legitimate claim--you just ought not to be able to bring it," he says. "Witnesses have died, records have been lost, and it could perhaps lead to fraudulent claims being brought."
In its decision, the court wrote that the statute affected only 1% of all malpractice claims. "It's only 1%, but in terms of the emotional costs of having to defend yourself 16 years later, and maintaining records indefinitely, it has significant impact on the practice of medicine," Webster says.
In 1980, Shirlee DeYoung received radiation treatment to her eyes from J.T. Griffin, M.D., a Seattle radiation oncologist. In 1995, after she began losing sight in one eye, DeYoung sought medical treatment and says she learned the radiation had caused injury to both eyes. She sued Griffin and Seattle's Providence Medical Center in 1996. Under existing law, DeYoung had no case. But she challenged the law, and the Supreme Court, in a 5-4 decision, eventually agreed with her.
In its decision, the court wrote that because the statute affected such a small number of claims, it wouldn't have a discernible impact on the insurance industry. The statute also violated the state's privileges and immunities clause and denied a small group of patients access to the courts. The 18-year-old malpractice suit against Griffin and Providence will now proceed.
Griffin's attorney, Kathy Cochran, of the Seattle law firm Wilson, Smith, Cochran & Dickerson, says any records regarding DeYoung's treatment are long gone.
"Now you can never rest easy. Before you didn't have to store records from 20 years ago. Now you do, because a claim can always pop up," she says. "Providers feel blindsided. The providers are in the here and now, and they feel like, 'If I don't have records from then, how do I defend myself?' "
Cochran predicts the majority of pending cases will be settled, simply because physicians will have no way to defend themselves.
Storing records on CD-ROM could help providers retain records longer, but it will cost Providence Hospital about $10,000 a year to archive patient records, according to hospital attorney Dianne Garcia. She also points out that providers will need to hang on to more than just medical records. Among the other things they should keep are records of preventive maintenance and other repairs as well as equipment owner's manuals, she says.
Adams says his three-physician group had been keeping records for up to 10 years, and he dreads having to do so indefinitely. He also worries some medical treatments considered safe today could be targets of malpractice suits in the future.
"There are constantly new procedures and treatments, and years later you may discover there are harmful effects," he says. "It seems a bit unfair to claim that someone was a victim of malpractice when at the time the care was delivered it was acceptable care."
Like most physicians, Adams pays for "tail coverage"--malpractice insurance for after retirement. Most insurance plans include the cost of tail coverage in annual premiums, and many plans offer it forever. Adams' insurance provides about seven years of tail coverage, but he worries insurers may now start charging more for it. Malpractice premiums vary greatly by specialty, and Washington physicians currently pay anywhere from $8,000 to $40,000 a year for $1 million of malpractice insurance.
Gary Morse, an attorney with Seattle-based Physicians Insurance, disagrees and doubts the decision will have much impact on the insurance industry. His company, the largest physician insurer in Washington state, was spun off from the WSMA in 1981.
"I don't believe it will have a measurable impact on the cost of medical malpractice premiums," he says, "because the court was factually correct when it stated that the law impacts very few cases."
Providence attorney Garcia believes more than a few claims will be affected. "I'm aware of the large number of cases where folks have been counseled they're not likely to have a case (because of the statute), so they never pursue," she says. "I don't agree that number is as small as the court believed. The court based their number on claims data--the folks who have actually filed claims--as opposed to the much bigger number of folks who never filed claims because they were counseled not to. I think (the number of claims) will triple at least."