Emergency physicians are forced by EMTALA to treat everyone who comes through the ER doors.
Should these cases be exempt from medical malpractice? The Happy Hospitalist argues that the standard of care within the community sets an unreasonable bar. Consider this situation, for instance:
The [problem] I see in today’s malpractice environment is the irrational standard of care that has been established, not by science, but rather by the fear of the lawsuit itself. Everyday of my life I see head CTs ordered on patients with drug overdoses because they are acting funny. Should that be the standard of care? Of course not. Is it? Yes.
He appears to support a bill recently introduced in Ohio where “physicians would have qualified civil immunity while working in emergency rooms and be subject only to lawsuits if they showed ‘willful or wanton misconduct.’”
Shadowfax, an ER physician himself, has something to say about the matter. Even if the bill passes, it doesn’t the cost to a hospital that EMTALA exacts, and also handicaps patients who are legitimately harmed in the ER. So, even if physician lobbying groups welcome this idea, he writes that such an idea “is inadequate, logically disconnected from the problem, unfair to patients, and excessively broad is not the right solution.”
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- Shadowfax on the KevinMD Live Q&A: Tuesday, July 14th at 10:30pm Eastern
{ 23 comments }
No, of course not. How could you suggest ER physicians be exempt from consequences of injuring a patient through negligence?
Shadowfax’s argument is based on two premises:
1. That the current litigious atmosphere serves to prevent medical mistakes.
2. That once removed from the fear of impending lawsuits, that doctors will become less diligent in treating their patients.
First, Studies have shown that there is virtually no correlation between the increase of lawsuits and the number of mistakes made. In other words, the litigous atmosphere has had virtually no affect on the number of mistakes made by physicians (read Complications by Dr. Gawande).
Second, the notion that the fear of lawsuits is what drives doctors to be careful is a slam against the entire profession. When a doctor makes a mistake, unless he is a sociopath, his first concern is the well being of his patient. Doctors are beings with a conscience, we are constantly faced with the consequences of our actions. Litigation or no, when it comes to our patients safety, the vast majority of us will self-regulate.
Bottom line, the majority of litigation serves only to inflate the cost of medicine.
. . . So, even if physician lobbying groups welcome this idea, he writes that such an idea “is inadequate, logically disconnected from the problem, unfair to patients, and excessively broad is not the right solution.” . .
It sounds like every law regarding medicine (peer review/privacy/etc.) that has been passed in Washington for the last 30 years. So what’s the problem?
Just curious, who defines “willful and wanton”?
Is that like “disruptive”?
The present Med Mal System is expensive, ponderous, inequitable, and wasteful. We need a system of compensation which is prompt, equitable, and evidence-based.
Perhaps the ER physician should fall under the category of “good samaritan” law for emergencies. That may be taking it a bit too far, but it is an idea.
“Bottom line, the majority of litigation serves only to inflate the cost of medicine.”
This would be a difficult thing to prove, since much of every payment made goes to past and future medical bills, or reimbursing a health insurer for sums paid.
“We need a system of compensation which is prompt, equitable, and evidence-based.”
Should we hold our breath until physicians and their insurers propose to pay injured patients more promptly? “Evidence based”? I think you mean “judged by other physicians”. There’s no shortage of evidence in a malpractice trial, which typically take a week.
Not “immune”. Just subject to limits on pain and suffering awards. No limits on economic damage, just limits on noneconomic damages. But it still needs to be all physicians. Otherwise, the trial bar will just find ways to include the doctors without such protection.
I am a doctor who despises the Jackpot Justice lawsuit industry.
I will never set foot in an ER due to the high liability and non-existent reimbursement.
Not “immune” but subject to unlimited economic liability and limited noneconomic liability, like Texas, California, etc.
Apply to all physicians, not just emergency physicians; otherwise the liability will simply devolve to physicians without such protections. If the protection does not apply to all docs, iability for emergency treatment of the heart attack will just devolve to a family doc that treated the person’s hypertension three years ago, blaming the FP ’cause the patient didn’t come back. The trial bar is nothing if not inventive.
Why should we have arbitrary limits on the value of suffering based on what insurance lobbyists want? How has it made California or Texas any better? California has had those for three decades, and they are suffering from a lack of physicians, healthcare is no cheaper, etc. Texas’ healthcare likewise is no cheaper and the physicians per capita is no better than states without those caps. So what problem is being solved with screwing those without economic damages? Like old people and children?
As for physicians judging themselves, that’s fine. As long as every other industry gets the same. For example, when doctors sue health insurers, the health insurers get a jury made up of insurance execs. Only fair.
“I am a doctor who despises the Jackpot Justice lawsuit industry.”
Interesting statement. I’ve yet to meet a person with a large malpractice award who feels like they’ve won the “jackpot”. Any of those victims you want to trade places with? You say ERs have “high liability”. How do you measure that?
To say that a child or an old person does not have economic damages is just a lie.
Economic damages are primarily based on lost earnings. So your retired person, stay at home mother, and child are not going to have much in terms of the first two and any in terms of the latter. You’ll be able to put SOME value to the mother’s work, in terms of cost of nannies/daycare, but other than that what is there?
Ongoing medical care. Adapt the house to disabilities. Hired child care to replace what mother can’t do. The child has to live, needs whatever care that child will need, food, shelter, etc. I could go on.
Sorry if it’s not millions. Sorry if it’s not a jackpot for a lawyer. Glad to see you’ve evolved from no economic damages to some economic damages.
“Ongoing medical care. Adapt the house to disabilities. Hired child care to replace what mother can’t do. The child has to live, needs whatever care that child will need, food, shelter, etc. I could go on.”
You’ve just described damages that ultimately go to a third party. You’ve given nothing to the actual victim for their lost quality of life, other than whatever number insurance company lobbyists come up with. Usually it’s about a 1/4 of what their CEO makes a year, for a lifetime injury.
“Sorry if it’s not millions. Sorry if it’s not a jackpot for a lawyer.”
It may well be millions, but again, it’s all going to someone else. And if you set a low cap, there is little incentive for the victim, particularly the elderly, to pursue it. So instead of the responsible party paying these damages, us taxpayers do it. Good policy choice!
You have an odd definition for a jackpot. When I think of winning a jackpot it certainly doesn’t involve risking tens of thousands of my own money and hundreds of hours of my time which I could be getting paid for elsewhere. I think of a jackpot like when I buy the lottery ticket at the convenience store for a $1.
You keep saying nothing. The injured party gets noneconomic damages paid up to the scale determined by law.
That the economic damages go to someone else is absolutely meaningless. They’re economic damages. That’s where they are supposed to go. Same with what the straw man insurance company CEO makes. I could care less.
” The injured party gets noneconomic damages paid up to the scale determined by law.”
So what’s the rationale in letting people who know nothing about the case decide its value? If you couldn’t care less what the insurance exec makes, why is it your business what the noneconomic loss of the victim is if you’re not on their jury? Short answer: it’s not. So why are you trying to put arbitrary limits on it?
You say it’s meaningless that they go to someone else. It’s meaningless unless you’re the victim considering pursuing a case. Why go to the trouble at that point? Why would you go through a trial just to give the money to someone else when you can just as easily go on disability? On the outside chance you might get an award for $250,000 in noneconomic damages, which will be reduced by what you owe your lawyer AND the expenses in trying it?
People sue to get back economic damages all the time.
Noneconomic damage caps set by legislation is no more arbitrary than the damages awarded in jury trials, which vary all over the map. I’ll take caps set by statute, thank you.
Doc 99 saying a trial doesn’t allow for evidence is absurd.
“Noneconomic damage caps set by legislation is no more arbitrary than the damages awarded in jury trials, which vary all over the map. I’ll take caps set by statute, thank you.”
Wait, people hearing the evidence of the case and then deciding the value of the case based on the evidence is equally arbitrary to insurance lobbyists picking a number out of a hat? Really? You’ve got an odd definition of arbitrary, apparently. Of course the damages are different in a jury trial. We’re talking about different people, with different injuries, and different damages. Why would you expect uniformity? That doesn’t make much sense.
except people should note that even the good samaritan law is not protection. in california, it was recently overturned by the supreme court of that state, for a non-medical knowledge rescuer who inflicted c-spine injuries by pulling the victim out of a burning car, thereby saving her life, so she could turn around with a predatory jackpot lawyer and sue the person that saved her life.
now, in california, the best advice is just keep on driving, no matter what you see. better to plead ignorance of the facts that you saw whizzing by then to try and explain to people why you couldn’t take c-spine precautions in the middle of burning wreckage. if the standard is now what the firefighter do, let them respond. sorry if it gets toasty warm in the meantime.
” for a non-medical knowledge rescuer who inflicted c-spine injuries by pulling the victim out of a burning car, thereby saving her life,”
This is a completely incorrect statement of the case, and is what happens when you rely on poorly sourced anecdotes in forming your opinions. Steve neglects to mention that at no time was the victim in any imminent danger, nor does he mention that the “rescuer” was drunk and high from smoking marijuana. And she didn’t just “inflict c-spine injuries”, the victim is now paralyzed.
What’s more, the statute was not “overturned”, it was simply held not to apply to this situation.
Now, if Steve believes we should immunize drunk people from the consequences of intervening in non-life threatening situations, then perhaps he needs to advocate it. But to presume that was ever part of the “good samaritan” law is false. A little more thorough examination of the case and the result than steve offers can be found here:
http://writ.news.findlaw.com/sebok/20090113.html
Sure Matt.
But the problem, as you well know is that it sets precedent. Now, how does somebody determine what a ‘life threatening’ situation is, or how about ‘immediate danger’ and what constitutes a ‘good Samaritan’. what if I have had one drink, should I not try to rescue people, well wait, what about the mentally challenged, they might be impaired in the classical sense.
You see where this is going. the law was originally enacted to ensure that somebody is not afraid to try and render assistance. Now, in most jurisdictions, this has been changed to some wording regarding ‘level of medical knowledge’ so a nurse, paramedic or physician who stops to render aid is held to a higher standard than a casual passer by, even though they may not have the benefit of tools of their trade or the equipment needed. This case now opens that up even more, so that the casual bystander may now be afraid to render aid, because, if the person does survive but is injured as a result of action, inaction, or lack of knowledge on their part, they are opening themselves, and by extension their loved ones, to the predatory attorneys and jackpot juries which already complicate medical practice, and lead to defensive medicine verdicts.
“But the problem, as you well know is that it sets precedent.”
The only precedent that was set is that it applies to MEDICAL care, not just any action. That was a question that was left open by the way the statute was drafted.
However, do you think it’s a bad precedent to tell people that if they’re drunk and high and the situation is NOT an emergency, that they’re not going to be immune from negligence?
“to the predatory attorneys and jackpot juries which already complicate medical practice, and lead to defensive medicine verdicts.”
Who are these “jackpot juries” who are giving unjustified awards? Do you know any victim with one of these awards you want to trade places with? What’s a “defensive medicine verdict”? Something like this one? One where doctors reach conclusions on the wrong information?
Do you believe, under the facts of this case, that the Court reached the wrong opinion? Remember, this case still has to be tried, the only thing heard so far is whether the good samaritan law immunizes this “rescuer”.
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