Legislators have failed to reach agreement on how to ease doctors’ high insurance costs, so the issue may go before voters for a second time.
“Neither side will give,” said Democratic Sen. Alan Bates, an Ashland physician.
Last November, voters narrowly defeated – 51 percent 49 percent – an initiative measure that would have limited so-called pain and suffering damage awards to $500,000.
A new ballot proposal is in the works that instead would cap how much money lawyers’ can make in such lawsuits.
There now is no limit on damages, and doctors say multimillion-dollar jury verdicts are causing malpractice coverage premiums to soar.
But lawmakers are reluctant to return once-defeated measures to the voters, and several proposed ballot measures to cap damages have gone nowhere in this Legislature.
So now the matter may once again be sent to the voters – but with a modification.
An initiative proposal has been filed that would cap attorney fees in medical malpractice – and other personal injury cases – at $100,000. Backers of the measure would need to collect 75,000 signatures by next July to put the proposal on the November 2006 ballot.
A damage limit in malpractice cases would require voter approval of a state constitutional amendment. That’s because the state Supreme Court in 1999 struck down a previous $500,000 cap on grounds the law violated the right to have a jury determine damages.
With the new ballot initiative, Bates said doctors instead are focusing on limiting how much of a damage award lawyers can win in malpractice cases.
Lawyers handling injury cases often work on contingency fee arrangements, getting part of a damage award – often 30 to 40 percent – if they’re successful, and nothing if they lose.
Bates said polling indicates high public support for capping lawyers’ fees, which advocates say could keep some frivolous cases from going to court.
But lawyers say fee caps could make attorneys reluctant to take the most complex and expensive cases, which can take years to litigate.
Alan Tresidder, a lobbyist for the Oregon Trial Lawyers Association, said pretrial expenses such as obtaining expert witnesses can cost a lawyer several hundred thousand dollars.
“The contingent fee system is designed for everyone, regardless of means, to have access to justice,” Tresidder said.
The Oregon Medical Association, which financially backed the losing measure to limit damages, hasn’t yet taken a position on the proposed ballot measure to cap lawyer fees.
Scott Gallant, the association’s government affairs director, said a decision will be made after lawmakers adjourn.
“We are waiting to see what positive action might come out of the Legislature,” Gallant said. “The likelihood of something passing looks slim.”
Another idea targeted at shaving insurance costs would create a nonprofit insurance fund to cover malpractice damages, similar to a program that insures attorneys.
“Any system that keeps commercial insurers in it is not going to reduce premiums,” Tresidder said.
But the idea has yielded no agreement. Nor has one that would require pretrial screening of potential lawsuits by professional panels, which supporters say could reduce frivolous lawsuits in some cases and produce out-of-court settlements in others.
Bates said the lawyer fee cap probably has the most traction now, and he expects the medical association will back it.
But Democratic Sen. Charlie Ringo, a Beaverton lawyer, said attorneys will fight any measure they believe acts to restrict access to the courts by people with legitimate grievances.
“I think the idea of limiting lawyers’ fee has superficial appeal,” he said. “I hope the public realizes that would hurt the ability to get justice.”
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