WhiteCoat

Reducing Liability on EMTALA care

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.

33 Responses to “Reducing Liability on EMTALA care”

  1. Matt says:

    Judges are not immune. That’s a mistaken assumption on your part, and their decisions are reviewed by an appeals court. So we start off with an inept comparison.

    Then we go to a false choice unsupported by data:

    ” 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.”

    And we close with this “So allegedly. . . ” Of course, we’re making policy by anecdote here.

    If this is true, please show me where states that have tort reform have better access to care, shorter waits, and better overall health than those without. It should be easy. Or better yet, make the promise that if the public gives you tort reform, they will get all those things. I doubt you’ll do it. We shouldn’t have to wait for data, we’ve had three decades of “reform” in some states. If it’s such a straight across cause and effect, presumably California should be patient nirvana – is it?

    “Perfect care or available care, Matt”

    We couple it with another false choice. Asking that people pay damages for their negligence has nothing to do with “perfect care”, and as I said above, you make no promises as to how “available” the care will be if we give you what you ask for.

    You should also be careful, because you are insinuating that health care is a “right” in the sense that if you have protection that you ask, people can count on “available care.” You smartly do not define that, but someone may take you at your word.

    Thus two questions remain. One, if a patient go into the ED, and the physician is negligent, not evil, just negligent, why should he not have to pay for the lost wages, medical bills, and pain and suffering caused as a result of that negligence? Why should that cost be shifted most likely to the taxpayers?

    Two, what are physicians GUARANTEEING if they do get this protection? How many surgeons does Ohio get in exchange? If no one will answer that question, why should the public give up any rights?

  2. I don’t think comparing judges whose greatest liability might be having their decisions overturned by an appeals court is at all comparable to a physician who runs the potential of incurring monetary loss and time lost involved in defending himself. Now there’s an inept comparision.

  3. WhiteCoat says:

    “Judges are not immune.”
    I defy you to show me one case in which a judge has been found liable for civil damages based upon performance of duties. Don’t even waste your money extending your WestLaw subscription to a nationwide search. You know, I know, and everyone else who reads this knows that you won’t be able to do it.

    “If this is true, please show me where states that have tort reform have better access to care, shorter waits, and better overall health than those without.”
    Perhaps not quite the metrics that you are looking for, but here is plenty of evidence that tort reform increases the number of physicians willing to provide care:
    http://blogs.wsj.com/health/2008/05/19/doctors-flock-to-texas-after-tort-reform/
    http://www.setexasrecord.com/arguments/202539-preserve-tort-reform
    http://overlawyered.com/2008/05/why-doctors-are-heading-for-texas/
    “Thanks to tort reform, over the past four years Christus saved $100 million that it otherwise would have spent fending off bogus lawsuits or paying higher insurance premiums. Every dollar saved was reinvested in helping poor patients.”
    Just do a search for “Texas tort reform” on the internet and you can read all about it.

    “Asking that people pay damages for their negligence has nothing to do with “perfect care””
    The finding of “negligence” is entirely dependent on the opinions of an expert who has a vested interest in creating an opinion that pleases his or her client. The whole process of determining negligence is flawed.
    If the current system does not demand perfection, then describe for me some situations in which it is OK for a doctor to miss a diagnosis.

    Re: cost shifting
    Many times large judgments are shifted to taxpayers anyway. Who do you think pays for the judgments at large county hospitals? When malpractice payouts are used up and patients still need care, who often pays for the care? The public – through Medicare/Medicaid.

    Re: guarantees
    That’s a silly argument. You want more physicians, then create an environment in which physicians want to practice. Look to Texas. If you don’t want physicians, don’t make any changes and call Gerry Spence for your next heart attack.

  4. Nurse K says:

    The phrasing needs to be more specific.

    … is not liable in damages to any person in a tort action for injury, death, or loss to person or property that allegedly arises from an act or omission of the physician in the physician’s provision of those services or that treatment or care if that act or omission does not constitute willful or wanton misconduct.

    Is there some legal standard somewhere that obviously defines “willful or wanton misconduct”? Is that like going out to wash your car in the parking lot while a patient hemorrhages to death or showing up to work sloshed and ordering a mish-mash of illogic on your patient?

    It would seem like it could be a costly endeavor just to determine if Dr. So-and-so’s actions were willful or wanton misconduct. Expert witnesses, etc.

  5. Max Kennerly says:

    I have no idea why you’re analogizing to a judge, who operates in a system with many built-in checks and balances — do your patients get appeals if you misdiagnose them? Can they move for an stay just before they stop breathing, get a panel of different doctors to review the decision, and then, if those doctors find a mistake, go through an entirely different course of treatment in the hopes of a better result?

    But let’s assume everything you say is true. ER docs are leaving because of “the threat of lawsuits,” whatever that means (scared of big verdicts? annoyed by time in depositions? paying too much in premiums?).

    Even so, there are plenty of solutions that don’t involve completely denying injured parties compensation. We could subsidize insurance (PA). We could impose caps on awards (Texas). We could set up a workers’ compensation-type system (some parts of Europe). We could even do society-wide risk management (various treatises).

    But, nope. Straight to full immunity, which means straight to zero compensation for people injured through the fault of someone else.

    Sounds fair to me; while we’re at it, what’s your position on state-mandated minimum auto insurance?

    • WhiteCoat says:

      “…analogizing to a judge, who operates in a system with many built-in checks and balances…”
      Right. List the “many” checks and balances.
      You can ask that a judge be removed if you can show bias and you can appeal a case to another set of judges who review the legal implications – not interpretation of the facts – if there is a problem. Otherwise, the judge pretty much has to be drunk on the bench or displaying his woo hoo to litigants before anyone takes action.
      You want an “appeal”? Ask for a second opinion. Get a specialist in the case. Happens all the time.
      Even if a judge makes a decision on an “emergency motion” authorizing a search of someone’s household where citizens’ property and privacy rights can be violated, there is still no liability attached. Oops. Maybe the evidence gets thrown out. Or … gasp … maybe a reviewing court slaps his/her wrists for making such a decision. Oh, the agony. I haven’t seen any judges making multimillion dollar payouts for the decisions they make on the bench.

      Your mindset is exactly what is wrong with the system. You think that no patient should be “misdiagnosed,” yet patients come to the emergency department all the time with incomplete histories, vague complaints, and difficult physical examinations. Nevertheless, you decry “misdiagnosis” as some cardinal sin.

      In terms of your alternate solutions, subsidizing insurance costs money which no one has and doesn’t remove the root cause of the problem.
      Most of your bretheren argue that caps on awards aren’t fair to those severely injured. I agree to a point.
      Worker’s comp model and health courts would be great idea, but ATLA doesn’t seem to like the idea very much.

      You can choose your clientele. You can refuse to represent someone for whatever reason you want. Even court-appointed lawyers can refuse cases for any reason or no reason at all. Emergency physicians are unique. No other job and no other specialty in the US takes all comers at all times with all problems.

      I’m not trying to say that malpractice doesn’t exist, but I also believe that the incidence of malpractice is way overblown. If you’re so afraid of people being injured by “incompetent” emergency physicians, Mike Royko had a solution:

      Don’t use them.
      That’s right. You don’t feel well? Then try one of those spine poppers, needle twirlers, or have Rev. Bubba lay his hands upon your head and declare you fit.
      Or there is the do-it-yourself approach. You have chest pains? Then sit in front of a mirror, make a slit here, a slit there, and pop in a couple of valves.
      You’re going to have a kid? Why throw your money at that overpaid sawbones, so he can buy a better car and a bigger house than you will ever have (while paying more in taxes and malpractice insurance than you will ever earn)?
      Just have the kid the old-fashioned way. Squat and do it. And if it survives, you can go to the library and find a book on how to give it its shots.

      • Matt says:

        Is your argument that judges shouldn’t have immunity? What would you do differently? As you know, in a civil jury trial judges don’t decide the facts or the damages. All they can do with the damages is cut them down. So what would you hold them responsible for? That’s why your analogy is poor.

        “You think that no patient should be “misdiagnosed,” yet patients come to the emergency department all the time with incomplete histories, vague complaints, and difficult physical examinations. Nevertheless, you decry “misdiagnosis” as some cardinal sin.”

        Actually, you are. The public is very forgiving when you consider the number of patient-doctor interactions. How many lawsuits are there against physicians? Do you even know? Yet you say there are too many? How does one come to that conclusion – perhaps the fear factor of malpractice claims is what is overblown.

        “. Even court-appointed lawyers can refuse cases for any reason or no reason at all.”

        This is completely and totally incorrect. A judge can make you take a case if he wants.

        “Worker’s comp model and health courts would be great idea, but ATLA doesn’t seem to like the idea very much.”

        Are your insurers jumping up and down for a no-fault system like workers comp? Are physicians? Where’s the legislative proposal from your side? Perhaps you need to look in the mirror.

        “Just have the kid the old-fashioned way. Squat and do it. And if it survives, you can go to the library and find a book on how to give it its shots.”

        Again, because you have a tough job why should you get immunity from even your gross negligence? You’ve yet to explain that. You imply that if you don’t then we won’t have physicians, but you won’t promise how many we get if we do give you immunity.

        You say you believe there is malpractice, but if you believe that, why would you support keeping the victims from recovering? This bill isn’t just keeping them from getting pain and suffering, it’s keeping them from ANY recovery for negligence. How do you justify that?

      • Max Kennerly says:

        You completely missed my point. My point was that, of all the possible options, “immunity” completely blows up compensation for injured victims, and that, if the concern was about the ER doctor, there were multiple methods of removing the ER doctor entirely from the equation while still ensuring compensation.

        You’re uninterested in any of them. Why? What is so terribly wrong about providing compensation to someone injured through no fault of their own?

        You latched on to the word “misdiagnose,” even though you know exactly what I meant. Of course I don’t think every doctor should be liable for every wrong diagnosis; the rest of the paragraph makes quite clear I’m talking about the context of malpractice.

        You complain “patients come to the emergency department all the time with incomplete histories, vague complaints, and difficult physical examinations” — and you know all of that is incorporated into a liability analysis. The circumstances at hand determine the standard of care; if you don’t have a history or clear complaints, all of that is factored in.

        Your analogy to judges is facile and you should know better. A judge doesn’t “choose his or her clientele” any more than you do, and yet is asked to weigh their dispute and declare one the winner under the law. Opening them up to a malpractice standard is a stupid and childish idea, one that would result in the obvious consequence of a lawsuit (or two) following every judicial decision, just so everyone could re-litigate the exact same issues again to see if the judge was right. We already have that process: it’s called an appeal.

        Royko’s column is a stupid attack on a strawman argument in which Royko imagines millions of people clamoring for lowering the bar to prove malpractice even as they don’t have any physicians. This is a joke, completely unrepresentative of any community in America, including your own, where you’re still haunting the halls of the ED despite the soul-crushing fear of malpractice liability in your “easy pickins” specialty that has apparently resulted in you going to one trial, where a jury found you not liable.

        Boo hoo. You don’t like paying malpractice premiums, so you feel spite towards everyone, and want to screw everyone who ever visits an ER, which is why you won’t even support basic compensation — for which you wouldn’t pay a dime — to victims injured by ED malpractice. No premium subsidy, no caps, no health courts, no universal health insurance, no nothing; you want immunity just to spite your patients.

        Don’t pretend this is really some deeper policy concern. You said the concern was fear of liability infecting your judgment, then brushed aside all of my suggestions for removing you from the liability equation, implying a phony deeper “root” problem. The “root” problem is that you’re resentful that no one else sees your first responder job as a purely moneymaking endeavor. Well, we don’t see cops or firefighters or EMTs that way, either. If you’re just interested in money, stop blowing that Hippocratic Oath nonsense at us and go to Wall Street.

  6. Michelle, RN says:

    (as if JCAHO regulations suddenly wouldn’t apply once the law took effect).

    I think that you might take a look at JCAHO “regulations” and you will find that they are simply “recommendations” and there is little to no penalty for not adhering to them.

    I think that MD’s are looking at the wrong party when they get upset about malpractice. Perhaps, it is not the injured patient but rather the insurance companies that raise your premiums irrespective of cumulative payouts.

    The other responsible party is the hospitals in which you practice that save money by reducing much needed nursing care and overburden physicians.

    With current tort reform restrictions in Ohio and the high cost of litigation one can be pretty certain that there was an egregious error if a suit is filed. Indeed, many who are victims of malpractice are unaware that they are victims and only those with the most severe injuries actually have access to representation.

    Our legal system is one of the methods for conflict resolution in this nation and every person should have a right to access- even if it is determined later that they are wrong.

    Finally, most patients seek to file a malpractice suit because they did not adequately understand the disease/treatment or they were treated poorly. Improving communication skills would likely help.

  7. chuckie says:

    Comparing a judge to ER physicians has flaws.

    A judge gets to take his sweet time, months or years, analyzing a case after the fact, no inturruptions.

    An ER doc is making critical judgments minute by minute with constant interruptions and unforseen variables. These can never be reproduced for the jury in court.

    *************************************************

    “But let’s assume everything you say is true. ER docs are leaving because of “the threat of lawsuits,” whatever that means (scared of big verdicts? annoyed by time in depositions? paying too much in premiums?).

    Yes, Yes, and Yes. Every ER doc I know that is say over 45 is seriously trying to head for the exit entirely. The rush towards the door is quickening the more current administration talks. Good luck with your next MVA with a brain bleed.

  8. ER RN says:

    “You should also be careful, because you are insinuating that health care is a “right” in the sense that if you have protection that you ask, people can count on “available care.” You smartly do not define that, but someone may take you at your word.”

    Ummmm no I believe what he is trying to say is that Dr’s are migrating to places like Texas that have tort reform. This is resulting in a better MD to PT ratio and that results in more “available care”.

  9. paul says:

    people want expensive ed care for free, and then to able to sue if there is a bad outcome. and to deny them the ability to have it both ways is unconstitutional. it boggles the mind.

  10. Matt says:

    WhiteCoat, you keep citing us to Texas, yet you never mention that the physician growth in Texas trails the per capita population growth. Why would it be unusual that more people equals more jobs for physicians?

    And why Texas? If you truly believed tort reform increased the number of physicians in a place, why wouldn’t you use any number of states that have had tort reform for decades? Like California. If your claim that tort reform=more docs were true, California would have docs on every corner.

    You know that’s a dishonest argument, and your links are statistically weak. You once said yourself that correlation does not equal cause and people should be careful confusing the two. Take your own advice.

    • WhiteCoat says:

      Paragraph A = Strawman argument
      Paragraph B = Why are you fixated on California? Isolated tort reform does not equal favorable practice environment
      Paragraph C = Silliness. That’s like saying to jurors “sure, the bullet went through the deceased man’s heart, but correlation does not equal cause, and therefore you cannot use this fact to prove my client murdered the man”

      • Matt says:

        I don’t know that you understand the definition of “strawman”. You say Texas is getting more physicians due to X factor, but you disregard the fact that there are more people in Texas. Why would it be unusual for there to be more physicians where there are more people. If I said that New Mexico was losing population, would it surprise you if there were fewer physicians? There are probably 20 states with tort reform, why do you only cite one? And one which has only a few years experience with it, while others have decades? That doesn’t make much sense. And you know it.

        Wait, if isolated tort reform doesn’t equal a better practice environment, why do you keep saying Texas’ increase in physicians is solely attributable to tort reform? You undercut your own argument.

        And if you don’t like the correlation/cause position, don’t blame me – it’s your argument.

  11. Matt says:

    “Ummmm no I believe what he is trying to say is that Dr’s are migrating to places like Texas that have tort reform. This is resulting in a better MD to PT ratio and that results in more “available care”.

    Yet California loses docs, so really the claim that they go where the tort reform is is a bogus one. He recently posted an article on the lack of care on Indian Reservations. Do you think if the Indians gave limited liability there would be a bunch of docs there? Of course not.

    However, when you make the statement that people have to choose between being able to recover for negligence or having docs, you better deliver some docs. Yet note that physicians are not PROMISING anything, but if you’re a member of the general public, you’re going to think that if you vote for this, you’re going to get to see a doc in your ED quicker. Are physicians sure they want to set that expectation up?

    • WhiteCoat says:

      Indian reservations generally do have limited liability, but they are also often situated in the middle of nowhere with little or no specialty backup or practice resources. A friend of mine used to work on one and said that practice conditions were deplorable.
      Goes to prove my point. Isolated tort reform does not make favorable working conditions.

      • Matt says:

        Wait, you keep arguing that we have to choose between tort reform or physicians. You make no mention of other factors, and when I do you call it a strawman argument. Now you’re saying it’s more than just tort reform?

        Sounds like someone is trying to have it both ways.

  12. Matt says:

    “Every ER doc I know that is say over 45 is seriously trying to head for the exit entirely. ”

    Problem with this claim is that the CBO studied it. And there’s no evidence it’s true.

  13. Matt says:

    “Many times large judgments are shifted to taxpayers anyway. Who do you think pays for the judgments at large county hospitals? When malpractice payouts are used up and patients still need care, who often pays for the care?”

    Counties are largely tort immune, and don’t pay beyond their insurance limits. And is your argument that because the person’s care may go past the insurance limits in their award, then we shouldn’t hold someone responsible for it? That doesn’t make sense.

  14. Matt says:

    “The finding of “negligence” is entirely dependent on the opinions of an expert who has a vested interest in creating an opinion that pleases his or her client. The whole process of determining negligence is flawed.
    If the current system does not demand perfection, then describe for me some situations in which it is OK for a doctor to miss a diagnosis.”

    Ah, so you do assume that every expert who testifies for a plaintiff is simply saying what they want to hear? But doesn’t your own experience belie this fact? Your side hired an expert and they said exactly what you DIDN’T want to hear.

    Oh, a situation where it’s OK to miss a diagnosis? Where it doesn’t result in any harm. Where missing it falls within the standard of care.

    But how would you suggest we determine negligence? You might say experts chosen by the doctors, but when that happened, you didn’t like the result so you went and found one who agreed with you. Do you see the rub there?

    • WhiteCoat says:

      How to determine negligence?
      Court appointed panel of 3 or 5 medical experts with each side having the opportunity to oust experts in the same way that they can oust jurors. Experts get ousted too much, they’re barred from performing that service in the future.
      Sides split the costs of expert fees.
      Either side can submit questions or literature for the panel to consider.
      Submit a report to the jury listing reasons for decisions, including citations to medical literature.
      Panel sits en banc to answer any questions the jury has.
      End of bias.

      • Matt says:

        OK, so doctors get to judge themselves. Fair enough ,IF you allow every other industry to do the same. Deal? For example – physicians have recovered over $1 billion from health insurers in class actions. So, in order to try the case, it first has to go through a panel of insurance adjusters. Fair?

        By the way, the judge picking this panel – how do we get him/her? Elections, appointed?

        If the judge has a bunch of donations from lawyers who represent plaintiffs in his election campaign, are you going to still trust him to pick experts?

  15. Matt says:

    Let me be clear on one thing, Whitecoat. I think you have a tough job, and I think you should be paid well for it. If we disagree on the politics of tort reform, and its effects, that doesn’t change my admiration for what you do and the skill involved.

    I also know being sued sucks, and I appreciate the stress involved.

    Political discussions sometimes get so emotional that it’s forgotten that there are people, on BOTH sides, who are affected by them, and we allow ourselves to get more shrill than we intend to those on the other side of the position.

  16. Michelle, RN says:

    Juries side with the physician 80% of the time-often in the face of true negligence. The insurance industry knows this-this leads to frivilous defense and extremely high litigation cost. It often subjects both the physician and the patient to years of legal proceedings- perhaps if there was more accountability when patients are truly injured by negligence there would be less malpractice claims. But the sad reality is that insurance companies know that they can save money if they defend even the most heinous claims because juries favor providers. It seems obvious that the problem is related to insurance industry more than the legal system.

    One solution to many of the factors that contribute to this problem is single payer healthcare. People would not have financial devestation from medical bills and hospitals would not have the financial incentive to cut back on care because they could budget globally. Linking reimbursement to quality would help as well- CMS never events force providers to consider evidence based interventions and systematically implement them.

    • chip says:

      “Juries side with the physician 80% of the time-often in the face of true negligence.”

      Proof please. Do you think providers and the insurance companies want to drag things out and be involved. Clear negligence and a check is usually written. Cases proceed when there is causation and damages are really controversial.

      Nurses are lucky. They never have any skin in the game. I have been named in about 7 suits over the years. Those nurses never even know about it because the hospital is named.

      you are very scary with little grasp of the overall issues. I hope you don’t work in my hospital

      • Max Kennerly says:

        Nurses aren’t named because they don’t have separate insurance policies. But they can be named and, if found liable, their personal assets can be levied just like a doctor’s.

        You wrote: “Do you think providers and the insurance companies want to drag things out and be involved. Clear negligence and a check is usually written.”

        That is not at all the case, not even close. It is extraordinarily rare for an insurer to settle a medical malpractice case prior to the disposition of summary judgment, and usually they wait until after the main pretrial rulings. The reasons why deserve a separate post; in short, no insurance company wants to look soft and none part with money before they have to.

    • I see the passion streaming from the providers MD’s and RN’s and I am still so proud to have the title of RN. I have lived many years of my life in Level 1 acute care facilities at the bedside and transport. My passion has become focused on resolving conflicts in the hospital environment between all stakeholders before they lead to litigation. There are many ways and levels on which to approach this given the complex system unique to each organization.

      To create a new culture will take more than internal dialogue but the real change I want to effect is to not have RN’s and MD’s go home with a knot in their stomach over something that isn’t care related but the fear that someone will try and create that connection that doesn’t understand the standard of care and take our precious resource of experienced and sound clinicians AWAY from the bedside and distract them in hopes of making a buck.

      I think it was another ER nurse that realizes health care is not a “right” it is a resource. Thank you for the healthy debate.

  17. Michelle, RN says:

    Matt- perhaps you could provide a link to the study that was done that supports the fact that defense wins 80% of verdicts? I have a pdf of the report but no link.

    Chip:
    “Do you think providers and the insurance companies want to drag things out and be involved”

    Answer- YES, the provider actually has little control- the insurance company does. It saves them money to drag out litigation.
    For example: A patient who is brain injured might die during the delay- saving potentially millions to the insurance company because the life care expenses are reduced.

    While nurses may not have “skin in the game” we certainly grow weary of watching our patients die because of inadequate care. This is why nurses are advocating life-saving reform as opposed to skin-saving reform- http://www.calnurses.org/nnoc/ohio

    I am sorry that you have been named in so many suits. Hopefully, you learned from those cases and used the opportunity to assist in analysis of systems and procedures to improve patient care.

    It is the defense attorneys role to create confusion and controversy about damages and causation-even if there is none.

  18. chip says:

    Michelle RN,

    Yes, the defense wins 80 plus percent of the time. What I have issue is your statement “even with true negligence”. There is not basis for stating “true negligence”

    As a provider I do have control. My insurance company could have settled for less than 50K. They spent over 200K taking it to trial for me for a unanimous 12-0 defense verdict.

    On another case pending, if anything the nurse was negligent. Of course the nurse is not named. I am because I am the doctor.

    Here is what I have learned from my suits: People with bad disease processes die. Nothing could of been done to reverse it. No amount of system and procedure analysis could affect that.

  19. Michelle, RN says:

    Here is what I have learned from my suits: People with bad disease processes die. Nothing could of been done to reverse it. No amount of system and procedure analysis could affect that.

    Agreed. However, do you agree that there is negligent behavior and that sometimes people suffer as a consequence? Should those people-no matter how many or few they are be forced to give up their right to legal grievance? I think not.

    I wish nurses were named in suits- I believe that they should be accountable to standard of care and not coerced into taking the role of non-thinking dummy “who only follows doctors orders”. I cannot tell you how many times I have heard nurses testify in deposition or at trial- “the doctor ordered discharge- he knew the BP was critically low- who am I to question that order?”; Or my boss makes me take an unsafe patient assignment- I have to do it or I’ll be fired (which by the way is true)…
    Perhaps, the firms filing your cases are inexperienced or of ill repute because it has been my experience that great effort goes into triaging cases for merit prior to suit filing whenever possible.

  20. [...] — the author of which is going through his own malpractice lawsuit — has picked up and run with the discussion we started over whether emergency physicians deserve the civil immunity that [...]

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  • Jeannette Wolfe
  • William Sullivan
  • Michael Silverman

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