The WSMA advocates for physicians' interests in the court system by initiating lawsuits and by filing "friend of the court," or amicus curiae, briefs that argue a physician-centric perspective.
The drafting of such briefs is resource intensive, and the WSMA generally retains outside counsel who specialize in writing these briefs. Because of the cost, the WSMA must be selective in allocating its resources to amicus briefs. Funding for these services comes primarily from the WSMA, though the WSMA often partners with other organizations such as the Washington State Hospital Association, Physicians Insurance, and the American Medical Association to share the expenditure of resources and increase the impact of the amicus arguments.
When determining whether or not to provide assistance to a particular litigant, we consider:
In June 2022, the Supreme Court of the State of Washington made the
right decision to keep the legal theories of medical malpractice and
informed consent separate. The appeals court in Davies v. MultiCare
had originally ruled that failure to offer a patient a study that you
did not feel was indicated was a failure of informed consent. This
ruling had the potential to dramatically change the nature of patient
care by requiring disclosure of an infinite list of tests that you did
not do. It also would invite patients to potentially demand
inappropriate and dangerous tests with the threat of failure to
provide informed consent if not offered.
Due to the potential danger to patients and physicians alike, your WSMA engaged in an amicus brief in support of the defendants to the Supreme Court to overturn this ruling. The court wisely overruled the appeals court and once more established the difference between medical malpractice and informed consent. Informed consent cannot be used as a theory for failure to test or treat for a condition that you did not diagnose and ruled out, either clinically or through other testing. Cases of failure to diagnose will remain an issue in medical malpractice as they had been previously. In the end, keep doing great medical care and the appropriate indicated tests without worry that failure to offer every test will be a failure of informed consent. -Nathan Schlicher, MD, JD
In a clear victory for the physician community, in February 2022, the
U.S. District Court in the Eastern District of Texas granted the Texas
Medical Association's motion for summary judgment in its lawsuit
challenging the independent dispute resolution provisions of the
federal No Surprises Act. The ruling is the best scenario outcome for
this litigation, which the WSMA supported by joining with 12 other
state medical associations in an amicus brief file by the Physicians
As a reminder, federal agencies have been working on rulemakings to
implement the federal No Surprises Act, which went into effect on Jan.
1, 2022. In September 2021, federal agencies issued a set of rules
that dramatically favored insurance carriers by directing independent
dispute resolution entities to assume the qualified payment amount as
a reasonable out-of-network rate, potentially skewing the impact of
the law on physicians and shifting even more leverage and profits to
insurers. Organized medicine reacted swiftly to oppose this
interpretation of the independent dispute resolution provision, filing
lawsuits and motions to stay against the imbalanced interpretation,
leading to this week's successful outcome.
In the ruling, the federal district court judge agreed that the
portion of the No Surprises Act rule challenged by the TMA lawsuit was
both procedurally and substantively flawed. While the ruling figures
to be appealed and there are other legal challenges to the law
pending, this preliminary win for the physician community is welcome
news and an encouraging start to the legal fight over the
implementation of the federal balance billing legislation.