Here I go with EMTALA again.
I wanted to flesh out an issue that Matt and Chris raised based on my previous post.
A proposed Ohio law states that a physician who provides emergency medical services is “not liable in damages to any person in a tort action for injury, death, or loss to person or property” based on the services unless there is “willful or wanton misconduct” involved (thanks to Max for the link).
Chris’ MedCity News published an article yesterday about the same law. The response from both sides of the issue is predictable. Malpractice plaintiff attorneys state that such a law would remove any incentives for quality control (as if JCAHO regulations suddenly wouldn’t apply once the law took effect). The Ohio Bar Association will come out with its official opinion in a couple of weeks, but for those of you who can’t stand the suspense, I can summarize it right now:
We believe that a law restricting the rights of citizens to sue is in direct conflict with the Constitution and would essentially give emergency physicians free reign to kill and maim the very subset of our population we should be protecting the most – those who are suffering from medical emergencies.
Proponents of such a law state that emergency physicians are “easy pickins” for lawsuits. They can’t refuse to evaluate any patient seeking care (unlike any other specialty – in fact, unlike any other profession that I can think of), the patients often come to the emergency department in extremis or with vague symptoms, there is usually little time to develop a physician patient relationship, there is very little follow up, oh, yeah, and if you don’t do everything the patient and family want and there is a bad outcome, they have the number to Dewey, Cheatem and Howe on their cell phone speed dial.
So allegedly, those physicians who provide emergency medical care (both emergency physicians and on-call specialists) are getting fed up with the threat of lawsuits and are leaving states where there is a high incidence of medical malpractice claims. I have not researched the issue, so I can’t cite any specific numbers.
The MedCity News article does cite a link about the projected shortfall of surgeons available to provide emergency care in Ohio. The MedCity News article also notes that many states have either passed or are considering such legislation including Arizona, Michigan, Minnesota, Utah, North Carolina, Florida, Georgia, Texas and South Carolina.
I commented on this topic in one of my posts on how to improve the house of medicine.
So in answer to Matt’s question about “why we would want a policy insulating ER docs from their negligence, even gross negligence,” I offer the following response from my previous post.
Granting medical providers immunity would throw everyone’s legal rights out the window, right? No profession should have immunity for their actions, should they? Funny. Judges have complete immunity for their actions. No one even questions the concept of “judicial immunity” any more. One quote I found here showed why the US Supreme Court feels that judicial immunity is important:
To render a judge liable to answer in damages to every litigant who feels aggrieved during the course of judicial proceedings, “would destroy that independence without which no judiciary can be either respectable or useful.” Bradley, 80 U.S. (13 Wall.) at 347.
It is OK for a judge to be grossly negligent and wholly biased in their duties. Litigants have no recourse whatsoever. The judges are immune from liability. At some point our nation is going to have to decide whether poor access to care, long waits for care and declining overall health is preferable to tort reform.
Perfect care or available care, Matt. You choose.
Will increasing the threshold of liability improve the practice of emergency medicine?
Have to wait for further data from states that have already enacted it. Anectdotally, Texas seems to be doing pretty well with its influx of physicians after implementing tort reform.