Washington has implemented many tort reforms over the years, but not all have withstood the test of time. In 1986, the state enacted the Washington Tort Reform Act, which instituted a $350,000 cap on noneconomic damages and set limits on attorney fees. However, in 2003, the Washington Supreme Court ruled the 1986 act to be unconstitutional, determining that it violated the right to trial by jury.
Since this ruling, more attempts at tort reform have been made. In 2005, physician and trial lawyer lobbies engaged in a battle for votes on competing ballot initiatives. The physician, hospital and nursing communities campaigned for I-330, a tort reform package that centered around a $350,000 cap on noneconomic damages and limits on attorney fees; trial lawyers politicked for I-336, which would have established a state-run supplemental liability insurance program and a three-strikes rule where doctors convicted by a jury of three malpractice events would lose their license for a 10-year period. The campaigns for I-330 and I-336 set a record for the most expensive ballot fight ever in Washington, with almost $16.4 million raised by both sides. Neither ballot initiative was passed by the electorateâ€”with I-330 losing by a margin of 43 to 57 percent and I-336 losing 40 to 60 percent.
With both sides losing out in the ballot initiative battle, compromise reforms were passed in 2006, including an apology law; collateral source reforms; requirement for initial mediation when a claim is filed; and a requirement that plaintiff attorneys file a certificate of merit prior to the case going to trial. The requirement for a certificate of merit was ruled unconstitutional in 2009.
Washingtonâ€™s 2006 legislation included a unique requirement for the state to collect detailed statistics about bout malpractice claims filed in the Washington Court system. Under the law, data on medical malpractice claims by insurers and self-insurers that have been settledâ€”with or without a paymentâ€”must be reported to the insurance commissioner, who is mandated to publish annual statistical summaries. It is hoped this data will replace campaign bombast with empirical evidence the next time the tort reform argument gets heated.