Just A Spoonful of Reform

The Fed wants to treat EPs like federal employees, but where is our federal liability coverage?


These are clearly the times that try men’s souls, or at least their patience. As health care reform is being contemplated throughout the country, there are more and more chances that we’ll get it wrong as opposed to getting it right. However, disagreements aside, emergency physicians need to come together and decide what goals we will put forward. We need to stop wasting time asking whose name is on the bill and start asking if the policies will meet the long-term goals of our specialty. There are many policy areas where emergency physicians need to get involved, from services rendered to workforce issue, but let’s begin with the medical-legal structure since we are most likely to get some unanimity in this area. I’ll give some ideas that I think are straightforward and could be a win-win situation for the government.

Ever since the passage of EMTALA, emergency physicians have been de facto employees of the federal government. We don’t get to decide whom we see. We have no way of deciding who walks in the door or whether we’re ever going to see a dime for the services rendered. We also have no way of knowing if those patients, who may not even pay the bill, are going to sue us. I think that there are multiple things that can be done right now with the Obama administration to address this issue.


The first thing is to agree that rendering care to those in need is not the problem. One of my greatest badges of honor is the ability to say that I have never denied anyone health care based on their ability to pay. We are the physicians who carry the staff of Asclepius the highest. We are the ones who, any moment of the day and night, see anyone and give out health care. This is part of who we are and should not change. But give me a break! This ought to be recognized and rewarded in at least two ways. First, emergency physicians should be able to calculate the value of the free care they were mandated to give out in a given year and then deduct some portion of that amount from their income taxes. If, in a year, I give out $160,000 of free care – which I’m perfectly happy to do – the government ought to be perfectly happy to let me at least write the loss off on my taxes. What’s wrong with this idea? I understand that this would reduce the income coming to the government, but if they actually had to pay for that same care, it would cost even more.  The federal government needs to recognize that emergency physicians are acting as conscripted government workers and should receive some sort of compensation.  Don’t give me 100%. No insurance company gives me 100% (and ever since California cancelled balanced billing none of us will ever again expect to see 100% of charges) but don’t let me drown in red ink! The logic is straightforward. As tax-paying citizens, we do not expect Boeing to make planes for the U.S. government and not get paid for it. Why would we expect physicians to give out health care and not get paid?

Second, there is no reason for EPs to bear the liability of every patient who walks into the emergency department. We need to have some reasonable liability relief. I believe that since we have essentially been named the de facto employees of the federal government, we should be covered by the federal government like any other federal employee. If the mailman runs over your mailbox, the government handles that liability. The concept is called “respondeat superior,” or “let the master answer.” Well since our master, the federal government, has decided what we will do and what we will get, let him also be involved in the malpractice issue. For physicians of any specialty who are mandated by law to see ED patients, liability should be handled through a no-fault system paid for by the federal government. In some states, this might mean as much as $40,000 savings in insurance costs. Having a federal system that would, without fear or favor, use a no-fault system to evaluate harm and properly compensate patients who are truly damaged, would work out for the benefit of physicians and patients alike.

And finally, it has been estimated that less than 15% of the funds that go into malpractice insurance policies actually wind up in the pockets of patients. Most reasonable physicians could look at a situation and decide whether a patient was truly harmed by the actions of other physicians. So be it. But do not let 40% of the money go directly into the pockets of attorneys. Both plaintiff and defense attorneys strip us down for money. Do not let people who are on the fringes of health care continuously drain the pockets of emergency physicians. It just doesn’t make sense. A simple act of assuming liability and creating boards which look at the extent of injuries would go a long way towards lowering health care costs, making physicians more comfortable with their clinical decision-making and stopping the mindless ordering of tests which are part of the “cover-your-ass” medicine which supposedly protects us from lawsuits. These few simple actions could be just the teaspoon of sugar needed to help the bitter pill of health care reform go down smoothly.


Greg Henry, MD, is the founder and CEO of Medical Practice Risk Assessment, Inc. Dr. Henry is a past president of ACEP and directed an ED for 21 years.
Have a response to this month’s “Oh Henry? Write in to editor@epmonthly.com




  1. Chet Shermer, MD on

    Dr. Henry, I agree with your prescription for health care reform as it pertains to us emergency medicine physicians. What will it take to get Congress to listen to these reforms? Why can they impose an unfunded mandate like EMTALA and not even feel the need to compensate us in some form or fashion? Are we not squeaking enough? I appreciate your column.

  2. Michael Preston MD on

    Dr Henry’s views are practical and address issues that every Emergency Physician faces every time we work. We should be compensate somehow for the tremendous amount of money we lose and the constant risk that we are exsposed to.

  3. Dr. Henry I do respect your views on the need for change pertaining to medical reform but I too don’t expect for anyone to just render services without being paid. On the other hand, medical malpratice is not a matter of a doctor being sue for his duty as a doctor in question. Doctors are human beings we all make mistakes which most people can understand. It is when a doctor does not apologize and covers it up that causes a lot of malpractice lawsuits. If a doctor get sued for a medical oversight and it causes any kind of damages, then it is only fair that the person has a right to sue. We can’t say stop medical malpratice because that would lead this country in turmoil and death would go up in an alarming fashion. Medical malpractice helps doctors do what is necessary to protect against what could become “Russian Roulette” with people lives in their hands. If a doctor do what is needed and what is right to do what is best to his or her ability then any claims of malpractice will be on their side without question. Evidence speaks for it self. I work and you work but if we don’t do our job correctly then accountabilty against us will proceed and doctors are no diffrent. A doctor mistake should make him become a better doctor and not one dealing with the public when he don’t. Malpractice is on the rise because doctors are not doing testing and making decision base on assumption which most times, are wrong calls. In today’s times doctor’s are more incline to just pass out a prescription for an illness and not do testing to indentify what cause it. It is only when the patient becomes ill or death do the (would of, could of and should of) comes into play. Most people I know love good doctors and can understand that they sometimes become overwhelm. We must also recognized that we can’t allow them to continue to play numbers game and Russian Roulette. A good doctor doesn’t become afraid of medical malpractice lawsuits because he will do what is right for the safty and care of his patient. A good doctor lives for the sake of his name through out his profession. “Each patient voicing” go see Dr. so and so, He does right by his patient and will counsel you with honest truth. Our doctors have lost this protocol and some are playing the numbers games waiting for a accident to occur. This is wrong and we are not addressing this issue. The goverment should work hand and hand with the medical field to assure that “One Hand Washes The Other”.

    Thank you for your columns.

  4. Allan Churukian, MD on

    After reading the previous comment by “Crystal”, it’s obvious that the threat of a lawsuit has never corroded her personal and professional life. She sounds like a lawyer spewing the typical, fear-mongering tactics that trial lawyers use to maintain their comfortable lives. Think John Edwards.

    Malpractice in the U.S. is a game: the lawyers make the rules and use the public’s fears to enforce those rules. The reality is that most lawsuits rendered are not necessarily about true malpractice; they are about money. Trial lawyers advertise daily to the public, inflaming any dissatisfaction with the promise of money and payback. In the end, the lawyers make more money at the expense of all parties, and the necrosis of public Entitlement worsens. Most physicians practicing today do not handle their patient care lightly. Why would we educate ourselves for such extended periods and sacrifice the best years of our young lives otherwise? We care more than most people, and we do what we do to use our education to service the public. We know that we’ll make mistakes, but we generally act professionally and accept responsibility if these mistakes happen. The lawsuits I’ve been involved with were all about settlements, which I assumed were to help offset the large medical bills that people incurred from their lack of healthcare insurance. One case was purely frivolous, reinforced and coached by the lawyers who filed the lawsuit. Ultimately after no settlements were ever given, the allegations were ultimately dropped. In the latter case, the patient and his family were so fooled by their lawyers, they continued to pursue a settlement despite being dropped by 3 different lawyers over 2 years. Ultimately summary judgement ended the foolishness, but my family and I had to endure this idiotic exercise until exonerated.

    What I would love to see is a system of malpractice that requires validation of the claims prior to allowing a lawsuit to move forward. Britain’s system allows for lawsuits, but if the plaintiff loses, they must pay for the physician’s legal fees and lost wages in addition to their own fees. If we had a system that could give physicians a more level playing field, the frivolous lawsuits would vanish, malpractice premiums would drop, and physicians could practice better without the spector of damage to their reputation and ability to work in their chosen profession.

    Dr. Henry’s comments and advisement should be heard by our legislators. Doctors need support, especially in the E.R., if they are expected to help with healthcare reform and continue to render the high quality care that we pride ourselves in giving. Unfortunately, it’s the lawyers and not the doctors who create the laws.

    I’m sure “Crystal” has probably never done an overnight 12 hour shift solo, with 20 patients in the waiting room, the E.R. is full, the walking wounded trauma that wonders in, and with a few in-house Code Blue’s to top it off…and did I mention the endless ambulance runs that just keep coming?

    Allan Churukian, MD, MS, FACEP
    San Diego, California

  5. J. Patrick Pearsall, MD on

    I could not agree more with Dr. Henry and wish we had a thousand such voices in DC! While I agree with “Crystal” that patients who are harmed by the negligence of physicians, hospitals, nurses, etc., Dr. Churukian also makes the valid point that this is not the “litigation lottery” where a big pile of money is at stake and you just roll the dice because you’re upset about an outcome. Someone at church asked if he should sue his doctor. He had a massive pericardial effusion that required an emergency open pericardiocentesis. This resulted in a complication requiring a thoracotomy. No long term sequelae/complications. He’s thankful for the doc saving his life but his wife kept telling him that this could be their chance to finally buy a new home! That was HER motivation and it finally drove him to ask me if he had a legitimate case.

    This is NOT something to be taken lightly but it is far too easy to initiate this type of legal brutality.

    J. Patrick Pearsall, MD

  6. john janousek md on

    I recently wrote a blog a http://www.wydaily.com titled healthcare reform without tort reform say it ain’t so. We as Emergency Medicine docs and societiies need to push tort reform for us and specialists on call for the ED separate from the big picture of tort reform for all of medcine.

  7. chuckhenrichs on

    You know, Greg Henry doesn’t always come up with something new and different no one else has thought of, but he does articulate it better than just about any one else.
    He has been around long enough and seen enough as an expert in medical liability that he knows that ours is all to often a meritless system where the greed, hypocrisy and duplicity of the protagonists is highly valued. I’m not anti-lawyer but what other learned profession gives legal ethics seminars on acceptable levels of deception in negotiations?
    The problem is that many ethical lawyers have convinced themselves that they are doing the public good in what is actually a flawed and unjust system.
    Caps on damages and other tort reform measures have helped but what we really need is a restructuring of the whole system into health courts or commissions with knowledgeable jurists, medical experts who are not meretricious, and fair compensation without fault for the great number of those who are injured, not just those with a good lawyer.

  8. mike schankerman on

    maybe the conversation about tort reform can be kickstarted by public transparency, ie let the general public become aware that their medical expenses are roughly double because our uncontrolled, parasitic, mulitbillion dollar malpractice industry requires us to perform an outrageous amount of ‘cya’ testing.

  9. Jason Dylik, MD on

    Firstly, I forwarded this article to my Member of Congress (who is NOT an attorney, but actually trained as an educator). Second, and of note, is how people with an “anti” viewpoint are unwilling to stand up for their points, namely, by naming themselves. I run risk of someone researching my name, and finding some dirt on me, but I am not willing to post anonymously. Likewise, I see my EM colleagues doing same. Now, of course, I can’t fault someone for not wanting to reveal their name, but, at the same time, it leaves me a bit less credulous as to motivations and beliefs.

    In any case, I hope for some type of tort relief in my lifetime (reasonable) and believe that Elvis is still alive, bagging groceries at the Tops International on Maple Road in Williamsville, NY (unreasonable).

  10. Health care begins with an oath to do no harm. If a care provider (doctor, nurse, health care worker) does harm, they, and only they, should be held accountable. Not the government. Why is it my place as a taxpayer to pay for the actions of one of my peers who decided that, since there is no personal risk involved, it would be okay to do something that caused harm to a client? That being said…

    Do we really *want* the government as the great sugar-daddy in the sky (a view embraced by those who would ‘milk the system’) handing out ‘awards’ for medical malpractice – or at least their version thereof? Look at all the people who defraud Social Security. I personally have seen one young man who travels with his girlfriend and does work for cash – yet collects a check each month for his disability: a ‘former’ meth addiction. Yet I’ve seen MS patients waiting years to get approved when they can barely dress and feed themselves, let alone work.

    While turning one’s problems over to the faceless cash-cow that is our government may seem like a solution, it is like the EP putting a Band-Aid on a punctured aorta, and sending the patient to the hospital administrator, who may or may not know anything about how to fix the problem. Social security and Medicare have already proven to be a nightmare of bureaucracy. Is this truly what we want for ourselves and our patients?

    I firmly agree that when the government issues a ‘mandate’ they should also back up their orders with fairness to those who the mandate negatively affects. But I believe there are other ways to accomplish this besides allowing the creation of another massive and incompetent government agency that is ripe for abuse and scams so that it becomes instantly jaded to the real needs of those who have truly been maimed.

    I cannot agree more with this statement from Dr. Churukian: “What I would love to see is a system of malpractice that requires validation of the claims prior to allowing a lawsuit to move forward.” This places some responsibility on the patient to consider the validity of their claim before they jump off the deep end into the dream of a big pile of money. That is how it should be. We need to eliminate the false and frivolous claims while still holding accountability for the truly incompetent and careless, which I personally believe to be few and far between.

    However, after years of dealing with Medicare and Social Security on behalf of patients needing care, I simply cannot in good conscience endorse the creation of an arm of big brother to oversee malpractice. This will do nothing but exacerbate what Dr. Churukian so aptly termed the “necrosis of public Entitlement.”

    The government does not have an endless supply of money raining from trees in heaven. Anything they dole out, legitimate or not, has to come from somewhere. Somewhere is still our pockets – yours, mine and everyone who works. I will gladly pay for my own misdeeds. But I do not feel obligated to pay for other people’s misdeeds. Find a way to eliminate frivolous lawsuits, truly. But don’t let an already financially overburdened and administratively incompetent government take over another facet of our careers.

    I still feel the American health care system is the best there is. I do not think it will continue to remain so, given our present course. Let us have change, but let it be change tempered with personal responsibility, and most of all, compassion.

  11. Much is wrong with the tort system, but in nearly every state, a case cannot be filed unless an ‘expert’ states that the standard of care has been breached. In many cases, doctors are willing to claim a standard well beyond what standard of care actually means. We physicians do not really understand this concept well, owing to our training to do the best possible. The toxic atmosphere of our training somehow legitimizes the hindsight bias that so often prevails in the ‘expert’ opinion.

    We are actually in control of the ability of the system to go forward. We will never convince the lawyers that they really do not provide a societal foil that protects unwitting patients.

    Doctors can guide the medical tort system to do what it is supposed to do, if we stop to understand our roles as experts, which is to advise the court on the medical details.

    Why, then, are experts hired by each side? This is a ridiculous distortion and conflict of interest. Experts should be hired by the courts. Of course, the court doesn’t want the expense, so our system pawns this off to each side to absorb. In reality, this is just another example of a hidden cost that ends up costing the system more than if it just did it properly.

Leave A Reply