If there is anything that could convince people of why making law through the initiative process is a bad idea, then Initiatives 330 and 336 provide the fodder. Both are simplistic solutions to complex issues. And, if people do not do the work necessary to make a truly informed choice, bad laws will be created.

I-330 is the doctors’ answer to the high cost of malpractice insurance. They maintain that malpractice claims have caused health insurers to raise their rates to such high levels that it is driving doctors out of practice and/or specific areas of medicine. And thus patients are harmed by lack of medical resources.

Their position ignores the reality of what is truly behind the rate increases: lack of profitability by the insurance companies. In fact, the true correlation that exists is the state of the economy and malpractice premiums. In the 1990s, the economy was doing well and there was no malpractice insurance “crisis.” Since 2000, the economy has not done as well and the rates have risen and we now have a “crisis.”

If one looks at the data provided by both the State Insurance Commissioner’s office and the report by Public Citizen (PC), a non-profit consumer interest group, there is plenty there to show that the “facts” provided by the I-330 group is full of misrepresentation and fear-mongering in order to get people to vote their way. First, there is the report by the Washington Insurance Commission that rebuts the hordes of million dollar plus claims. According to it, of the 10,200 malpractice claims filed in the last 10 years, only 45 cases were decided in the patient’s favor. Of those 45, less than 2 percent were for more than $1 million. Not exactly a situation of runaway juries with outrageous awards. Too bad its release hasn’t gotten the same amount of exposure as the truly rare large settlements.

Then there is the information provided by PC. Based upon their studies of what is going on in Washington state, they have found that MALPRACTICE PAYMENTS HAVE GONE DOWN 42.2 percent from a peak of $50.7 million in 1997 to $29.3 million in 2004. The pro I-330 folks have attacked the report despite the fact that Public Citizen used data from the National Practitioner Data Bank (NPDB), “the only nationally mandated source of information about payments made on behalf of doctors to compensate patients in malpractice cases” (from the PC rebuttal to Yes on I-330). The NPDB is used by the U.S. Government Accountability Office and academic researchers — folks who don’t get information from bad sources.

The pro I-330 folks would also have you believe that doctors are fleeing the state. Public Citizen found that THE NET NUMBER OF DOCTORS IN WASHINGTON STATE HAS ACTUALLY INCREASED from 294.3 MDs per 100,000 people in 1993 to 322.9 MDs per 100,000 people for 2005. And, the rate of increase has been much larger over that last four years (2001-04) than the previous eight years (1993-2001). This situation even exists for the specialty practice areas: according to PC’s report, from 1992-2004, the number of internists grew by 28 percent, the number of obstetricians by 21 percent, the number of surgeons stayed level and the number of ER docs went up 52 percent.

The real problem for doctors is the cost of their insurance, yet nowhere in I-330 is there any mention of a cap on insurance rates. In fact, there is not one word about insurance rates. Not surprisingly, two of the three top contributors (the first is the state AMA), according to Public Disclosure Commission reports, are Pharmaceutical Research and Manufacturers of America which gave $500,000 and an almost equal amount, $417,000, came from Physicians Insurance. These are both entities whose interests would be best served by caps on claims with none on insurance rates.

When 4 percent of MDs are responsible for 48.1 percent of the payouts, the better answer is to get rid of the bad practitioners which will decrease rates. Anesthesiologists have done this by improving their care by focusing on increasing safety measures. The ones who will suffer most will be the children since they are not entitled to economic damages: they have no proven record of earnings upon which such awards are based. Limiting helpless children to $350,000 over a lifetime is really unconscionable. I-330 is bad law and is not the cure for the ill.

The lawyers’ answer to I-330 is I-336. While this initiative actually has something to commend it — principally revoking licenses of bad doctors — it, too, is a simplistic answer to a complex issue. But, in the lawyers’ defense, I-336 was a reaction to I-330 — it wouldn’t exist if the MDs hadn’t gone this route. Having it fail would not be bad as long as I-330 fails. But, if I-330 passes, then people will rue it if I-336 doesn’t pass as well.

The public is faced with these initiatives by themselves because legislators didn’t want to add their versions to the ballot. They thought it would be too confusing. They are keeping their fingers crossed that the public will be sensible and defeat both so a more reasoned approach can be crafted next session. Certainly, that is the hope of the insurance commissioner’s office.

That is what is needed: the legislative approach where debate and compromise can happen. That is the cure for what ails the doctors and lawyers — not the initiatives.

Val has been called a community activist — or agitator — depending upon one’s view. She contributes her time in the fields of arts, education, human rights, lacrosse, land use, politics and her Jewish community. Val has been an adjunct faculty member of OC since 1980 where she teaches political science and speech. She resides outside of Poulsbo with her husband and their pets.