State can reduce financial payouts by preventing the harm in the first place

THE OLYMPIANJanuary 13, 2012 

Our attorney general has reversed course on prevention and instead wants to remove accountability under the law to its citizens.

An op-ed by the attorney general’s office took umbrage with a recent Olympian editorial that highlighted the AG’s failure to keep campaign promises by reducing payouts to injured families when the state is responsible for causing the harm.

In his retort, Chief Deputy Attorney General Brian Moran offered an empty remedy flanked with factual errors and a lack of understanding of the state’s risk-management history.

The Olympian editorial correctly noted that the year before Attorney General Rob McKenna took office, the state paid out $24 million in claims, about one-third of what is projected for this year. There is a cause for the current increases that Moran ignores.

In 1999 and 2000, the state experienced record-high payouts to victims, reaching a high of $99 million. This dramatic rise in payouts is directly linked to the OK Boys Ranch case in which a dozen boys, some as young as 11, suffered years of physical, sexual and emotional abuse under state supervision. Then Attorney General Chris Gregoire launched a task force of private and public sector risk-management experts to investigate the problem and search for real solutions. I was appointed to that task force as the one victims’ representative.

I started out quite skeptical, and felt the committee was loaded against the citizen perspective. But as AG and co-chair, Gregoire dictated that we were not looking for excuses or immunity – we were looking to prevent what could be prevented.

After a year of hard work, the task force utilized the best practices of public and private risk management, and developed 19 recommendations for rule changes and four concepts that required legislation. We focused on enhancing accountability of state agencies by measuring their performance. We assessed their premiums for their losses, and required annual reports and analysis. The Legislature approved all of these reforms, including a cornerstone requiring reviews of injuries or deaths to identify what happened, and how it might be prevented in the future.

These efforts worked. In 2005, we paid out $24 million in tort claims. For that biennium, the state maintained a payout level two-thirds lower than in 1999-2000.

But these review efforts have slowed to a near standstill. In the first few years of this program, state agencies under legal direction from the AG averaged more than five such reviews a year and payouts stayed at one-third of previous levels. While other factors also contributed to this reduction, clearly the focus on loss prevention reviews and risk management played a large role.

This problem was confirmed over the last year by an audit of state risk-management activities by a select Legislative Committee. The committee particularly singled out DSHS as not engaging in proper risk management – the agency most responsible for the increase in injuries and payouts.

The current AG office has abandoned pushing agency reviews. Instead, McKenna has championed unprecedented protections to negligent state agencies as well as all local governments. This approach deprives innocent and vulnerable victims from access to justice and any chance to put their lives together.

Moran also misrepresents the law in Washington as it is compared with other states. When the Legislature made state government accountable, our state Supreme Court immediately ruled for special legal discretionary immunity for government comparable to what exists for the majority of other states. Contrary to his assertions, our Legislature passed sweeping tort change in 1986, including severely limiting joint and several liability.

The task force successfully reduced payouts. But its effectiveness did not generate headlines, because it prevented headlines.

Reduced payouts should mean fewer families experience devastating injuries or loss of a loved one from government negligence. The attorney general would serve citizens better by trying to prevent the harm in the first place.

That is a win-win we can all get behind.

Janet Rice is an attorney with the law firm Schroeter, Goldmark & Bender in Seattle.

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