WhiteCoat

Legal Immunity

Last Friday, Secretary of Health and Human Services Kathleen Sebelius signed a document that provides vaccine makers immunity when they produce swine flu vaccine.

Since vaccines are “well known” (wink, wink) to cause such physical maladies as autismneurologic disorders, hyperactivity, learning disabilities, asthma, chronic fatigue syndrome, lupus, rheumatoid arthritis, multiple sclerosis, and seizure disorders, a federal law provides legal immunity for manufacturers that produce the vaccines. Instead of going through the court system, there is a fund called the Vaccine Injury Compensation Program that is set up to compensate those who have been injured by vaccines.

Many vaccines have a low profit margin. In addition, most vaccines have only one or two manufacturers. If you were a vaccine manufacturer and knew that you could potentially spend tens or hundreds of millions of dollars defending and paying out on one class action lawsuit about a vaccine you produced, would you continue to make the vaccines?

By immunizing manufacturers from liability for producing vaccines, the public policy argument is that the public benefits vaccines produce far outweigh the potential public detriment to the point that the government wants to encourage manufacturers to make vaccines.

Several of the attorneys that frequent this blog have stated that legal immunity for physicians is the equivalent of a “license to kill” but they are also quick to defend legal immunity for judges in performance of their duties.

So based on the above, I have two questions related to this immunity topic:

The federal government has immunized manufacturers from liability for making a swine flu vaccine. Will this ruling influence your decision to get the vaccine when it becomes available?

  • No, I'm getting the vaccine no matter what (81%, 250 Votes)
  • Yes, I probably won't get the vaccine because manufacturers can't be held liable (11%, 33 Votes)
  • I don't believe in vaccinations and wouldn't get the vaccine anyway (8%, 26 Votes)

Total Voters: 309

Loading ... Loading ...

Using the public policy argument regarding vaccine production, would you support immunizing emergency physicians from liability if doing so would increase the availablity of emergency medical care?

  • Yes. We need more doctors providing emergency care (74%, 221 Votes)
  • No way. They're playing with people's lives and should be held liable if there's a mistake (26%, 76 Votes)

Total Voters: 297

Loading ... Loading ...

80 Responses to “Legal Immunity”

  1. Gene says:

    Since vaccines are well known to cause such physical maladies as autism … neurologic disorders, hyperactivity, learning disabilities, asthma, chronic fatigue syndrome, lupus, rheumatoid arthritis, multiple sclerosis, and seizure disorders…

    Umm, WTH? Was this part of the article or did someone here actually write that vaccines have been proven to cause the above illnesses?

    • Anon says:

      I interpreted that as a joke.

      • Gene says:

        The (wink wink) was added well after I commented. I certainly hoped that it was meant sarcastically, but that does not often translate well in text.

    • WhiteCoat says:

      Didn’t catch this comment initially. I was being facetious and changed the post so that my sarcasm was more apparent. Sorry about that.

  2. Matt says:

    I think he was being sarcastic. But we’ve had the Vaccine Injury Compensation Program for a couple decades – wonder why these got full immunity?

    Vaccines are not profitable whether they have immunity or not. Your main buyers are governments and for flu at least you’re constantly having to develop a new version. It’s never going to be terribly profitable so there will never be a bunch of companies wanting to do it. If a bunch do, then they’ll be literally no margin and pretty soon there will just be a few. And with margins thin to start with, will quality suffer?

    http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2005/07/16/BUGR8DOQTQ1.DTL

    I guess the theory is since we’re heading to single payer, the govt. will pay the costs of any adverse effects anyway.

    Of course, the anti-vaccination types are going to love this. Only adds to the conspiracy theories.

    “they are also quick to defend legal immunity for judges in performance of their duties.”

    Your argument here has never made sense.

  3. Matt says:

    “Using the public policy argument regarding vaccine production, would you support immunizing emergency physicians from liability if doing so would increase the availablity of emergency medical care?”

    I can’t imagine emergency physicians want their services to be paid for directly by the government, and agree to be available to Americans in almost every corner of the country, at a low, low price, do they?

    Probably not a good idea to compare yourselves and your availability to that of vaccines. There’s two sides to a public policy argument, and you’re forgetting the part that benefits the public.

    • brighid says:

      Also, vaccines are thoroughly tested before they’re sent out into the community, but once in the community they perform only one simple task. They never exercise judgment, they never do anything requiring skill or training, they never have to communicate with a coworker or patient.

      Since they’re not human, they never come to work exhausted, ill, or under the influence.

      We need both emergency physicians and vaccines, but they’re not really comparable in terms of benefits or risks.

  4. Anonymous says:

    I’ve never gotten a flu vaccine and I’m still alive so pfff.

  5. DaveyNC says:

    So, WC, know any doctors that do tonsillectomies strictly for profit? Can’t wait to see what you have to say about that statement.

    • WhiteCoat says:

      I’m assuming that you’re using the analogy that pharmaceutical companies are strictly “for profit” and doctors are not?
      For the most part, I think that you can attribute multiple motives to any business venture. Pharmaceutical companies try to help people. They make huge profits doing so, but it would be hard to argue that altruism is at least not one of their secondary motives.
      Similarly, how many physicians do you know of that practice their trade solely for the good of the public without expectation of compensation? I do my best to help every patient I see, but make no mistake, I have a mortgage, hundreds of thousands in student loans, medical bills, and all other kinds of debts I have to pay. I wouldn’t work in medicine if I didn’t expect to make a profit.

  6. Doc99 says:

    I do think that Phil Howard has made a good argument for Medical Courts, similar to Vaccine Court or Tax Court.

    http://commongood.org/f-healthcourtsfaq.html#1

    • WhiteCoat says:

      I think that Common Good is an excellent think tank. Some have questioned the motives of Phil Howard. I believe he used to represent either insurers or the pharmaceutical industry before joining Common Good. I personally find his ideas insightful.

      • Matt says:

        If you READ the health courts’ proposal put out by Common Good, you’ll see it’s simply caps. What’s more, it’s also just as expensive as the current system.

        Philip K. Howard is still a lead partner at one of DC’s most prominent lobbying firms, Covington & Burling. That firm became “famous” during the tobacco litigation as when all the docs got released it was clear that they were lobbyists for that industry, and millions each year were funneled through there by the tobacco companies to seed state “tort reform” efforts. These docs are all available online, by the way, as is Covington & Burling’s representative client list. They still represent many tobacco manufacturers, as well as many Fortune 500 companies.

        One does not become a partner at a firm like this without being a rainmaker or a serious biller. Unless they’re letting him bill for the time he spends running Common Good, he’s a rainmaker, and CG is beneficial to his clients.

        Physicians routinely say it’s all about the money when talking about plaintiff’s lawyers and discounting their positions. Common Good was founded by Mr. Howard, I believe (haven’t been able to confirm that), and he may well be a genuine believer. I would assume that this information would cause a similar reaction to Common Good and Mr. Howard’s claims. I expect Common Good’s donor list would provide a lot of illumination on their motivation as well, again applying the same standard physicians do to plaintiff’s lawyers.

        If physicians feel like their interest are best aligned with the tobacco industry and the pharmaceutical industry, well, so be it. It appears though, that they’ve allowed themselves to be the face for two industries’ seeking liability protection.

  7. The question on immunizing ER doctors is too simplistic.

    We do have *way* too many lawsuits, but simply outlawing lawsuits is the wrong answer. We still need a way to *effectively* discipline (and remove) incompetent or ineffective doctors. At the moment lawsuits eventually act as such – after a while, a problem doctor will have trouble getting insurance putting him out of business.

    Come up with an effective system to eject idiots, and I’ll support immunizing from lawsuits. But not until.

    • Matt says:

      “Come up with an effective system to eject idiots, and I’ll support immunizing from lawsuits.”

      Problem with saying that is one doesn’t need to be an “idiot” to be negligent. A guy who drives the speed limit all his life, and is careful every time he gets behind the wheel, may still mistakenly think the light is green that one time and cause harm. Should he be immune for the resulting damage?

    • Hey Doc Wait says:

      States have medical licensing boards that do function to regulate bad doctors. I’ll not argue that they are or are not effective–I’ve heard arguments either way–but if complaints are filed with a state medical board they will investigate the claim and determine whether the doctor did anything wrong. If the claim is indefensible (ex, operating drunk or assaulting a patient) the license is revoked. Civil court is not the only means we have of policing bad or negligent doctors.

    • WhiteCoat says:

      I agree that there has to be better oversight, but lawsuits are a poor substitute for disciplining incompetent physicians.
      John Edwards made tens of millions of dollars convincing jurors that doctors caused cerebral palsy by not delivering a baby quick enough and causing birth anoxia. In fact, oxygen deprivation at birth is a very rare cause of cerebral palsy. So now all the physicians who lost multiple millions of dollars based on expert puffery should also lose their medical licenses?

      • Max Kennerly says:

        Please, WhiteCoat, you know statistics better than that. Cerebral palsy is typically caused by something other than hypoxia-ischemia, which means, if you look at a typical cerebral palsy sufferer, odds are good it wasn’t caused by hypoxia-ischemia.

        The relationship flips if you look at someone who suffered hypoxia-ischemia and now has cerebral palsy. In those circumstances, the odds are very high the h-i caused it. ACOG itself, no fan of malpractice liability, published its own findings for when h-i can cause cerebral palsy, as it did in all of Edwards’ cases for which I’ve seen the details.

        On the subject, you should spend some time looking up infant head cooling technology, which reduces the severity of complications from hypoxia-ischemia. Such would be, of course, pointless if, as you said, hypoxia-ischemia wasn’t really a problem for newborns.

      • Matt says:

        “I agree that there has to be better oversight, but lawsuits are a poor substitute for disciplining incompetent physicians.”

        How are medical boards doing? Some evidence suggests they’re slow to even discipline drug abusers in the profession.

        Of course lawsuits are a bad method for doing that. That’s not their role.

        As for CP, of all the individuals with CP in the country, how many of those filed lawsuits? Was it a statistically insignificant number? If you don’t know, how can you say there are too many based on weak science?

        ” So now all the physicians who lost multiple millions of dollars based on expert puffery should also lose their medical licenses?”

        Can you point me to a physician who has lost multiple millions of dollars?

        I think you’re engaging in a bit of puffery yourself.

  8. Rebecca says:

    Well, I probably won’t get the vaccine, but I might if I could afford it, but if I did happen to have a bad reaction to a vaccine, I could be compensated through VICP. So … if ER physicians (or physicians in general, whatever) were immunized, would there be a public fund for compensation for those experience malpractice?

    I mean, it’s not really the same thing, though it’s an interesting thought. As you said, there are not many vaccine manufacturers, and they don’t make a big profit. There are lots of doctors, and some make outrageous amounts. (I mean “outrageous” in a complementary way.) If one manufacturer of vaccines was rendered bankrupt by a lawsuit, we’d probably end up in with a vaccine deficit, whereas there are many physicians available and there’s no harm to public health if one doctor stops doctoring.

    • WhiteCoat says:

      There is no harm to the public health by losing the services of one doctor?
      Tell that to the people in Canada who have no emergency department services several days per week because their emergency departments have to close for lack of physicians.
      In addition, when the sentiment of those in the profession becomes bad enough, they might encourage future physicians to choose another line of work. Since training is four years of school plus 3-4 years of residency, new physicians can’t be created as quickly as a new factory to produce vaccines.
      I actually think the looming physician crisis is more insidious and invidious than the vaccine issue.

      • Matt says:

        “I actually think the looming physician crisis is more insidious and invidious than the vaccine issue.”

        How many physicians per capita constitute a “crisis”? And how many do you think take us to where we should be?

        If you can’t answer those, it appears you’re just using scare tactics. As far as Canada goes, you might want to get more comfortable with it. Because while you’re working for liability carriers on tort reform, your industry is being nationalized.

      • Rebecca says:

        Oh, I’m actually in favor of tort reform because I think that lawsuits and the liability doctors face is deterring good people from becoming practicing physicians, but it doesn’t change the fact that losing any single doctor wouldn’t put public health in danger.

        The only way to justify immunizing docs from lawsuits would be to nationalize the health industry and make it a government service, IMHO.

  9. Clayton Hughes says:

    Firstly, the first poll option doesn’t include an “I’m not that concerned about swine flu and won’t get a vaccine”, so that segment of the answers will probably fall into the much more extreme “vaccinations are the work of the devil!” answer.

    Total Legal Immunity (for anything) is a very scary prospect. On the one hand, I would definitely like to encourage emergency (and any) care, but I realize that (even the threat of) malpractice suits are a huge obstacle. I think immunity for any “good faith” actions is much more palatable. The problem with that, of course, is that you then get to have arguments over whether the person in question was acting to save you or if they were somehow malicious.

    It’s certainly not a situation with a very clear answer.

    • WhiteCoat says:

      I thought about adding different categories of immunity, but believed that it would muddy the response.
      Agree that standard of “good faith” or “gross negligence” is more palatable than complete immunity.

  10. Elizabeth says:

    Would there be a public fund for paying people injured by emergency physicians? If not, your questions are not at all parallel. If so, then it’s at least palatable from my point of view as a potential patient, but it seems that it could be even more expensive than the current system, since you would just shift the trial costs over to the public fund administration, and you would probably get more claims against the fund.

    The “legal immunity for judges” thread on this site has never made any sense. Judges are liable when they act against the law from self-interest. But the bare fact of being overturned is not evidence of being corrupt any more than having the patient die is evidence of being a bad doctor.

    • WhiteCoat says:

      Guess what – your patient compensation funds just might become a reality.
      Judicial immunity certainly does not (and should not) apply to criminal activity as described in the article you linked. Your argument is like saying “Hey, look, judges can be arrested for stabbing babies in the neck!” You and Matt are comparing apples and oranges.
      While performing their duties, judges can be wholly biased in their decisions, refuse to recuse themselves from a cases in which they have a stake in the outcome, act contrary to all existing laws, and even incarcerate people on a whim, yet suffer no civil liability at all. Correct me if I’m wrong, but bad faith doesn’t even create a civil cause of action against a judge – it only gives litigants a way to get a bad verdict overturned.
      Why is it that a patient death often creates a rebuttable presumption of guilt for a physician, but a judicial decision overturned on appeal gets a shoulder shrug and an “oh well” from the legal community?

      • Elizabeth says:

        Why is it that a patient death often creates a rebuttable presumption of guilt for a physician, but a judicial decision overturned on appeal gets a shoulder shrug and an “oh well” from the legal community?

        Because in that case someone is dead?

        I’m not trying to be facetious (very much), but most of the civil decisions we’re talking about here are about money. That means that if the judge is overruled, we can fix it with money (giving back money erroneously awarded, or awarding money erroneously withheld). In many cases, there are no other damages. Once the damages due to the underlying suit have been redressed, there would be no point in going after the judge, because you have already been made whole.

        In other cases, I recognize that people do suffer real damage due to incorrect verdicts – being unfairly jailed, losing jobs due to being labeled a felon, etc. But it’s not just about judges – we don’t generally allow suits against any government agent for stuff they do in the course of their duties. You can’t sue the meter maid for giving you an improper ticket, even if you had to lose a whole day of work coming down to City Hall to fight it. You can’t sue your school principal for doing a strip search for ibuprofen (or at least you couldn’t before the Supreme Court made it clear that that wasn’t OK). You can’t sue a policeman for breaking down your door because he read your apartment number wrong from the warrant. In fact, if all you doctors start working for the government providing government-sponsored healthcare under one of these plans, maybe we won’t be able to sue you individually, either. That’s because the government needs to be able to get and keep people working for it, and people won’t do it if it subjects them to personal liability. If all the doctors went out of business because of fear of malpractice liability, and it created a healthcare crisis, maybe the government would decide to do something about that, too. Oh, wait, I think I read something in the news about something like that….

        (Incidentally, a “rebuttable presumption of guilt” for the physician is a gross overstatement.)

      • Matt says:

        “Why is it that a patient death often creates a rebuttable presumption of guilt for a physician, but a judicial decision overturned on appeal gets a shoulder shrug and an “oh well” from the legal community?”

        It doesn’t create a “rebuttable presumption.” Either you don’t understand that term or you are misstating its meaning intentionally.

  11. Joe says:

    I think that offering blanket immunity is too simplistic, too much of a patchwork solution. I would like to see cases reviewed by a judicially-supervised panel of doctors — preferably doctors in the same specialty as the treating physician. The panel would return one of five findings:

    a) The adverse event could not have been prevented.
    b) The adverse event could have been prevented only through heroic effort.
    c) The adverse event could have been prevented by an average physician, but failure to do so is not inexcusable.
    d) The doctor’s actions were grossly negligent.
    e) The doctor’s actions were criminal.

    Findings of a or b would result in no penalty for the doctor. A finding of c, d, or e would result in possible remediary training or license suspension. Civil lawsuits would only be allowed after a finding of d or e. Malpractice insurance would only be required to pay out after a finding of d.

    The philosophy behind the above is that the risk of a doctor’s making a mistake is part of the inherent risk of medical treatment. Doctors WILL make mistakes just like everybody else, and just because the stakes are higher than usual doesn’t mean that they should be penalized accordingly.

    • Matt says:

      I see no reason why doctors should be the only one to benefit like this. I think everyone should be judged by those within their own industry and no liability should attach without a finding of gross negligence. Is the podiatrist or plastic surgeon any more important to America than the over the road truck driver?

      • Joe says:

        It’s not about who is more important to America. It’s about what works. Currently the cost of truck insurance is not excessive for any but the worst drivers. Findings of fault by layfolk are for the most part reasonable. And freight charges are affordable.

        On the other hand, the cost of med mal insurance is…what, somewhere around a third of a doctor’s gross? Findings of fault by layfolk are unreasonable often enough that they encourage frivolous lawsuits. And doctor’s bills are through the roof.

        I don’t know that the above solution is the best one, but I think it would be better than what we have now. Whatever we do, we need to accept reasonable errors by doctors as part of the risk of living, and not demand that doctors (or a government compensation fund) restore the status quo ante whenever they make a mistake.

      • Fyrdoc says:

        No, but an over-the-road trucker who brings their load in late once, arguably because of bad weather, heavier than expected traffic, or even a misjudgment of their route does not face suit like a physician does. Matt, your problem is that you want to compare apples and oranges. Other professions, even yours, so rarely deal with true life and death issues that it is reasonable to hold them to a very high standard when they do. But ours deals with it everyday. The patients need to assume some of that risk as well. Merely showing up at a physician’s place of business does not guarantee you will be o.k. I’m sorry, but I’m human. BTW – this is not without precedent. Firefighters can not be sued for tactical errors made, even if lives are lost (under sovereign immunity). Now I do understand Matt, before you start again that this is because they are agents of the state and this is a different area of law. But the public’s tolerance of that immunity remains and it is not wholly dissimilar (especially with recent staffing cuts and easing of training requirements)

    • Hey Doc Wait says:

      I like your suggestion, Matt. Not only do doctors make mistakes, but medicine isn’t perfect. Every single treatment out there has a risk and a benefit, and sometimes the risks are high. If I prescribe amiodarone to someone with a potentially lethal ventricular arrhythmia, and they develop hypothyroidism or pulmonary fibrosis, does that make me a bad doctor? Is that a mistake on my part? I say no, and as long as I’ve counseled my patient that this could happen and they agree to take the risk I should not be liable. I do think that there should be a compensation fund for those people harmed by best medical decision making, and that this system would probably help more patients than the current malpractice system.

      That said, if a doctor did something inexcusable like amputating the wrong leg, I think they should be liable in civil court. But practicing medicine according to the best available guidelines should be protected from liability, whether in the ER, the clinic, the inpatient setting, or anywhere else.

  12. paul says:

    why would i want to be vaccinated against something as harmless as swine flu?

    • Katherine says:

      To stop yourself transmitting it to those more vulnerable than you (children, the elderly) without being aware that you are even sick.

  13. Pharm Adam says:

    You forget one very important aspect of the Vaccine Injury Compensation Fund. It also gives PROVIDERS of vaccines immunity from lawsuits related to injury from vaccines, provided there is no negligence, of course. If you don’t have any providers willing to administer the vaccine, it doesn’t do the public health much good.

  14. Katherine says:

    Also I assume you’re being sarcastic, but you could have been clearer. You just know there are anti-vaccinationists out there RIGHT NOW using you as evidence that vaccines are bad.

  15. Matt says:

    “Currently the cost of truck insurance is not excessive for any but the worst drivers.”

    Most truck company execs would disagree heartily. In fact, if you ask any business they would disagree mightily.

    “On the other hand, the cost of med mal insurance is…what, somewhere around a third of a doctor’s gross?”

    CMS says it averages 5% of their total overhead.

    “Findings of fault by layfolk are unreasonable often enough that they encourage frivolous lawsuits.”

    How many frivolous claims are there? I guess we need to define frivolous and then see what percentage will kick in these self judging gross negligence standards. I would be Wal-Mart’s claims are much higher.

    ” Whatever we do, we need to accept reasonable errors by doctors as part of the risk of living”

    Agreed. Let’s just not favor doctors over any other industry because they scream the loudest.

  16. Samantha says:

    It’s a very murky subject for me & the question is too closed, sorry.

    It isn’t a doctor vs. patient or public vs. private health-care issue. It’s just not that black & white.

    Some patients fail, some doctors fail. Some care facilities fail. Some patients, doctors,facilities, rock.

    Mostly, though, there is this weird grey-zone. Not enough medical staff, too many patients, not enough resources, past anger and resentments on both sides, same with sense of entitlement.

    There IS a difference between a mistake and neglect. Mistakes DO happen to everyone, even the most respected diagnostician.

    Question is, when is there a pattern of mistakes or near calls, that signifies that a practitioner should no longer be practising, and a simple, just “not getting it?”

    Y’all admit and discuss mistakes, on the blogs, with a “I was lucky” or “I helped them”, part of the training, I know, but when, honestly, do people make those hard calls?

    Doctors don’t just get voted off the island, without malpractice, what recourse does someone have, particularly, someone without the resources to up and move to a different hospital?

    p.s. (what about patients who need care at an ER, ill-equipped/staffed to handle their caseload, yet can’t go to other locations due to insurance issues, what recourse is there?)

    Samantha

  17. Jennifer Edwards says:

    Love your blog, Whitecoat. Two comments:

    1) I took history courses in high school and college and read about the ravages of now-preventable diseases. Therefore, my own vaccinations are up-to-date, as are those of my three kids. BTW, my oldest son is autistic. I don’t think for one second that vaccines were responsible for this, nor did I hesitate at all to vaccinate my two younger children.

    2) During the third week of my first pregnancy I got a kidney infection. I went to the hospital thinking it was a reoccurence of a kidney stone. The ER doc ordered a CT among other tests. I didn’t know that I was pregnant at the time and the doc didn’t ask. After the CT someone ran a pregnancy test and it came up pos. It was a mistake on the doc’s part, but a human one. An unintentional one. I was very touched that the ER doc actually called me and apologized. Could the CT have harmed my pregnancy. Maybe, but I doubt it. And yes, this is the child with autism. No, I don’t think the CT caused the autism. And, no, not for an instant did I consider suing the ER doc.

  18. Max Kennerly says:

    Great, I was looking for inspiration for a post tomorrow.

    Two things jump out at me:

    (1) There’s a difference between (a) providing immunity after the work has been done for a single medication that has been evaluated and approved by the FDA for use under specific conditions for a specific purpose and (b) providing immunity in advance for the entire universe of decisions and treatment by a physician. With the vaccines, society, through the government, gets to take a long, hard look at exactly what they’re getting for the immunity bargain, including precise data on the risks and the cost/benefit, rather than writing thousands of individuals blank checks to exercise whatever level of care they feel like doing at the time without any consequence.

    (2) Last time these issues came up, I asked you why you wanted “immunity” rather than a compensation system like the vaccine board. Now you’re blurring the two together. So, are you talking total immunity (with injured patients getting zero) or talking immunity analogous to that for particular vaccines, with a corresponding “malpractice injury compensation board?”

    • WhiteCoat says:

      I’m looking at things from a different angle.
      I think we’d both agree that there is a crisis in access to emergency medical care in this country.
      My question is: How do we fix it?
      I like the idea of patient compensation funds. Those funds would help ensure even distribution of compensation to those who have been injured by a physician’s negligence. They would also provide patients who do not have catastrophic injuries with some compensation even though their cases might not normally be worth a plaintiff attorney’s time or expense. The problem with such a system is that the National Practitioner Data Bank would count each settlement against a physician. Eventually, enough entries on the Data Bank make a physician unemployable. So many times physicians choose to litigate cases rather than get put on the Data Bank.
      I don’t advocate complete immunity, but I think that qualified immunity for emergency care (gross negligence standard) is a way to decrease the amount of defensive medicine being practiced in the US and bring some physicians back to practice. Goes back to the same question I asked Matt. Which is more desirable: Perfect care or available care?
      BTW – glad my posts are so inspiring

      • Matt says:

        WC, let’s assume you are correct that there is a massive shortage of emergency physicians. So if the public gives you what you’re asking for – a guarantee as to no longer being liable for negligence – what do you guarantee the public will get? How many emergency physicians for us? How short will our ED wait times be? How much cheaper will healthcare be?

        I assume you’re not wanting to get something for nothing.

        Oh and you know that there’s no requirement for perfect care. If there is it’s not being followed very closely.

      • Matt says:

        I look forward to physicians putting their compensation plan up in Congress. That will finally put some substance behind their claims of desiring to help malpractice victims rather than their usual legislative proposals which make it more difficult for the already injured.

        Should we look for that this fall session? Or is this more empty talk while your lobbyists continue to work on screwing victims and passing the cost of negligent care to the taxpayer rather than the negligent party and their insurer?

      • Max Kennerly says:

        If that’s the angle you’re looking at it from, then you’re just plain wrong, and this is a silly exercise. There’s no evidence malpractice — which is at the very most 1.5% of healthcare costs — is a major contributing to the lack of access to emergency care in this country. Far, far, far, far, far more important are reimbursements from insurance companies and the government. Malpractice has less an impact on access to emergency care than the bear market, which forces hospitals to scale back expenditures because they have less of an investment cushion to land on.

        If you’re bothered by the impact malpractice has on your business, that’s one thing, but don’t pretend this is a crusade for the public’s benefit. You could eliminate malpractice liability entirely and barely dent access to emergency care.

      • WhiteCoat says:

        Matt –
        You want guarantees? I’ll give you guarantees.
        If we pass a law that bars liability for ordinary negligence for EMTALA-related services here’s what I guarantee will happen:
        1. It will make some on-call physicians more likely to want to provide emergency services again.
        2. It will create a less hostile practice environment in which doctors don’t feel a need to practice as much defensive medicine.
        3. It will cut down on insurance premiums and insurance costs because there is no longer liability associated with ordinary negligence.
        4. It will bar some people with legitimate claims from filing lawsuits.

        If we continue down the same road we’re currently traveling in the medical system, here’s what I guarantee will happen:
        1. Doctors will continue leaving medicine
        2. Fewer qualified applicants will be willing to enter medicine
        3. More hospitals and emergency departments will close
        4. Patients will have an increasingly difficult time obtaining timely emergency care
        5. Ambulances will be diverted from closest emergency departments more often
        6. There will be more bad patient outcomes due to the above
        7. More bad patient outcomes will create more chances to file wrongful death and medical malpractice lawsuits
        8. Eventually Gerry Spence will get his wish

        The requirement for “perfect” care is relative. Tell me which acute MI it is always OK to miss. Tell me which ruptured aneurysm should never be actionable. Until you do that, you demand perfection.

      • WhiteCoat says:

        “There’s no evidence malpractice — which is at the very most 1.5% of healthcare costs — is a major contributing to the lack of access to emergency care in this country.
        You could eliminate malpractice liability entirely and barely dent access to emergency care.”

        No evidence? No evidence, you say?
        Click on this link:
        http://www.facs.org/ahp/emergcarecrisis.pdf

        A 2005 hospital ED administration survey also lists “malpractice concerns” as the principal factor discouraging specialists from providing ED coverage.
        Furthermore, because liability premiums have outpaced payments for their services, some surgeons have concluded that they simply cannot afford the added liability risk for a largely uninsured patient population.
        In addition, younger surgeons, who often take the on-call shifts at trauma centers, are leaving states with the most severe liability problems.
        For example, according to the Project on Medical Liability in Pennsylvania, funded by the Pew Charitable Trust, “Resident physicians in high-risk fields such as general surgery and emergency medicine named malpractice costs as the reason for leaving the state three times more often than any other factor.”
        Further, an American Hospital Association study found that more than 50 percent of hospitals in medical liability crisis states now have trouble recruiting physicians, and 40 percent say the liability situation has resulted in less physician coverage for their EDs.
        The crisis has even forced the closure of trauma centers in Florida, Mississippi, Nevada, Pennsylvania, and West Virginia at various times in recent years.
        Specialties that have experienced particularly high premium increases—including neurosurgery, orthopaedics, and general surgery—are also among those that provide services emergency patients most frequently require.
        According to a report from the General Accounting Office, soaring medical liability premiums have led specialists to reduce or stop on-call services to hospital EDs, seriously inhibiting patient access to emergency surgical services.

        Is that enough evidence for you? How’s that for evidence?
        Sorry, Your Honor, one too many cups of coffee this morning. I’m just getting a little excited …

        I could give you so much evidence that malpractice affects access to care that you’d choke on it all.

        But then there might not be one of us malevolent hacks around to take care of you for it.

      • Max Kennerly says:

        Impressive. Your evidence is a survey of doctors and summary conclusions by a hospital lobbying group.

        1.5% of costs. And that’s an inflated estimate.

      • Max Kennerly says:

        Oh, one more thing:

        “According to a report from the General Accounting Office, soaring medical liability premiums have led specialists to reduce or stop on-call services to hospital EDs, seriously inhibiting patient access to emergency surgical services.”

        Really? Care to reference the study specifically?

        Fact is, malpractice premiums aren’t the problem affecting EDs. They’re just not that big a deal overall.

      • WhiteCoat says:

        “Impressive. Your evidence is a survey of doctors and summary conclusions by a hospital lobbying group.”

        Thanks, Max. You just won a bet for me with Mrs. WhiteCoat. You and Matt are so predictable it’s actually humorous.
        Now the argument shifts from “There’s no evidence malpractice is a major contributing to the lack of access to emergency care in this country” (your exact quote) to “the hoards of evidence you supplied don’t align with my previous statement, so I’ll just question the validity of the evidence.”

        “Your evidence is a survey of doctors and summary conclusions by a hospital lobbying group”

        Government Accountability Office = shhhhh. Don’t tell anyone. It’s really a shill group representing doctors.
        Pew Charitable Trust = No one knows yet, but it is really run by the AMA and probably Rush Limbaugh or some other entity adverse to lawyer interests.

        “Fact is, malpractice premiums aren’t the problem affecting EDs. They’re just not that big a deal overall.”
        Do you have some citation that backs this self-serving statement or are you just learning how to blow smoke like Matt?

        You’ll have to excuse me – it’s time to go collect on the bet I made.

      • Max Kennerly says:

        Whitecoat,

        Did you happen to read that “hordes of evidence?”

        The GAO study you find so important concluded, “many of the reported provider actions taken in response to malpractice pressures were not substantiated or did not widely affect access to health care.” And that’s in the “crisis” states; the GAO found no effect at all in the non-“crisis” states.

        The GAO report was so unhelpful to your cause that the AMA lodged an objection to it, which you can find on the very first page of the report, which you obviously didn’t read.

        The Pew study was… a survey of doctors, like I told you. Not the strongest evidence. Wanna bet what a survey of lawyers looks like?

        Your other “evidence” is a bunch of general statements — not backed by any numbers at all — by the American Hospital Association, a lobbying group for hospitals.

        Like I said: no evidence malpractice is affecting access to emergency care.

        Despite ample numbers and data being available to health care providers to demonstrate the size of this effect, they’ve been unable to come up with anything; indeed, they’ve adamantly refused to release these numbers for public review and academic study. That tells me all I need to know.

        It seems your wife has won after all.

    • Max Kennerly says:

      While we’re at it… the (biased) report you linked to said “declining reimbursement” was the most important factor affecting the ED surgical workforce.

      Not malpractice premiums. It may be your hobby-horse, but from a policy standpoint it’s pretty much a non-issue.

  19. Linda says:

    As Matt said earlier, the VICP program has been in effect for decades. Its inception was started by having Wyeth pull out of manufacturing of vaccines due to pertussis complications (which have since been rectified). The other manufacturers at the time were threatening to do the same since they were all fighting lawsuits. That would leave the US – and the world – without continuous supply of vaccines.

    The fund is supported solely by the manufacturers – each of them pay a fee for each dose they manufacture. It is not a “government” supported fund and has its own court which hears all claims against vaccines.

    This does not imply immunity for adverse reactions for people who receive vaccines. It does give immunity to those of us who administer vaccines – pharmacists, nurses, PAs & physicians. Thus, you can file a claim for an adverse reaction & receive compensation, but you will not receive punitive damages and you cannot extend a claim to those who administer or the site which provides the administration as a different deep pocket.

    Biologicals are unique drugs with many potential side effects – mostly due to how they are made – using egg protein, gelatin, antibiotics, yeast, etc in their manufacture. Most VICP compensations are for medical treatment after a severe adverse effect – a severe allergic reaction.

    You can find that information at cdc.gov. Its purpose always has been & still is to provide continuous supply of vaccines without bankrupting drug companies.

  20. Anon says:

    Immunity is completely unnecessary.

    To start with, there are two general ways the vaccine maker can be liable.

    1. Design defect: there is a flaw in the vaccine itself. Side affects arguably fall into this category.

    2. Manufacturing defects: something goes wrong with the manufacturing process that makes one batch different from another.

    Design defects should be a non issue. All major side affects should be discovered during testing and anyone receiving the vaccine will be made aware of these side affects and will release everyone involved of any liability related to those side affects before they are administered the vaccine. During testing, the person receiving the vaccine would release all liability in exchange for whatever they are being paid during testing.

    Maybe there could be immunity if a severe health crisis dictates that they bypass the testing phase but I don’t think I would take a vaccine that hasn’t been clinically tested. There could also be immunity for undiscovered long term side affects in drugs/vaccines that are FDA approved (or maybe the government assumes that liability through it’s approval of the drug/vaccine).

    But granting blanket immunity that even covers manufacturing defects is just wrong. What if a batch is contaminated as a result of the manufacturer’s negligence. The threat of a suit in this area is necessary to ensure that they don’t relax their quality control measures.

    Bottom Line – There is clearly abuse in the system and I suspect that the outcome of WC’s trial will show an abuse of the system. But the potential for even greater abuse on the other side is even worse.

    A friend of mine is an attorney that works for an auto insurance company. Last week he got a jury verdict where the plaintiff was awarded less than his actual medical bills because he over treated his injury [this was less than the insurance company offered to settle the case]. Juries make mistakes (O.J. verdict!) but they get it right more often than not.

    • Matt says:

      A win for WC will not show abuse of the system. In any method of resolving disputes there will be a winner and loser. The fact that you lose is not evidence you abused the system by bringing your dispute to it.

  21. Don Salva says:

    I might not be an US citizen, seeing as I live in Europe, but regarding the question if ED Doctors should become immune to any liablity if in turn more doctors would work, my vote is cleary NO.

    If a doctor, pardon my french, fucks up, he or she is to stand to his/her errors. Simple as that.

    I do not want to see more doctors work in the ED if this means they can’t be held liable if they kill somebody due to malpractice and can get away with it.

    No thanks, not in the US, not in Europe, not anywhere.

  22. Matt says:

    “No, but an over-the-road trucker who brings their load in late once, arguably because of bad weather, heavier than expected traffic, or even a misjudgment of their route does not face suit like a physician does.”

    This doesn’t make sense. Failure to bring your load in on time doesn’t cause injury. As for how often each gets sued, no one knows. WC has estimated there are one billion physician patient interactions each year. How many suits result from that?

    “Other professions, even yours, so rarely deal with true life and death issues that it is reasonable to hold them to a very high standard when they do.”

    On a percentage basis, how many physician-patient encounters involve immediate life and death?

    “The patients need to assume some of that risk as well. Merely showing up at a physician’s place of business does not guarantee you will be o.k. ”

    No one has ever said it would guarantee that. Why should patients assume the risk that your work will not meet the standard of care?

    • Hildy says:

      As a proportion? Reasonably few. As a rate? In the past week, I’ve had three patients with an untreated mortality of >50%, which with good treatment will be about 30%. I would like to think that I (and my attending who supervised my care) gave good treatment and saved at least half a life this week.

      How many other people have to deal with true life and death situations on a day to day basis? How often do firefighters go to lifethreatening fires? How often are police in an armed standoff situation? I think it would be less often than doctors, especially emergency medicine doctors, are faced with patients in lifethreatening situations.

      Perhaps the true way toward tort reform is for a true trial by peer – either a jury composed of doctors, or maybe a panel selected from judges expert in health law and doctors nominated by their specialty societies / boards.

      As for the original poll:
      I wouldn’t get the vaccine, not because I don’t believe in vaccines, but because I don’t believe in vaccines that are untested.

      • Matt says:

        I told you, I’m on board with doctors judging their own. As long as everyone else gets to as well. For example, physicians have raked in hundreds of millions in class actions against health insurers. I think that if physicians get to judge their own, then the juries when those class actions are tried should be insurance adjuster. A jury of the defendant’s peers. Or a panel selected from insurance execs nominated by their collective organizations.

        It’s a matter of fairness.

      • Elizabeth says:

        In a civil trial between a doctor and a patient, why should only doctors be “peers”?

  23. Matt says:

    “The only way to justify immunizing docs from lawsuits would be to nationalize the health industry and make it a government service, IMHO.”

    All signs point to you getting your wish in the near future!

  24. Matt says:

    Problem is WC is those are the same guarantees and “evidence” (to the extent surveys can be called that) that physicians have been promising for every round of tort reform. Then when you get it, like in California, there’s always another reason your promises don’t come true. Trauma centers are still understaffed, they’re still unprofitable because reimbursements suck, rural areas still struggle to keep physicians because spouses don’t want to live in the sticks and the money is better in the city, etc.

    Even the guarantees you promise above are illusory. How many new physicians do we get for this protection? If we don’t get them do we get our rights to hold you accountable back? How much cheaper will our healthcare be? Give us a number we can hold you accountable for.

    You say this is all for the patients but decades of evidence, real evidence, shows otherwise. So put some teeth behind your promises.

  25. Matt says:

    “Do you have some citation that backs this self-serving statement or are you just learning how to blow smoke like Matt?”

    WC, if you’re not blowing smoke, I guess you agree with me that California’s tort reform provisions should be repealed since all your “guarantees” listed above really haven’t come to pass, eh?

    I look forward to collecting my own bet.

  26. Matt says:

    “Pew Charitable Trust = No one knows yet, but it is really run by the AMA and probably Rush Limbaugh or some other entity adverse to lawyer interests.”

    I like this. You don’t even address the methodology of the “evidence”, you just cite who put it out. If the Pew Charitable Trust puts out a survey of teenagers and concludes that teenage curfews are too early, will you be supporting a law to move them back?

  27. Fyrdoc says:

    “If you’re bothered by the impact malpractice has on your business, that’s one thing, but don’t pretend this is a crusade for the public’s benefit. You could eliminate malpractice liability entirely and barely dent access to emergency care.”

    You are half right Max. The public currently has complete “access” to emergency care in that they can go to any ED and be seen. The problem comes in the specialty coverage we have in the ED to get the care that people need (in addition to the shortage of trained emergency physicians – but I agree, that shortage will not change if malpractice does). Right now, as I sit at work, I have no hand surgery, pulmonolgy, neurology, or plastic surgery available. The closest for most of these specialties is over an hour away. Why? Well, as the nephew of a hand surgeon, and friend to many more, I can tell you their feeling, all of them, is that if they agree to take ED call they are exposed to extreme liability (our patients are rarely fully compliant with care plans, follow-up, or even basic wound care – but do tend to be young with earning potiential) for little to no benefit (most hand surgery is “same day” and can be done in surgi-centers, i.e. they do not need to take call to have privledges). Why take on that exposure? If sheilded – even to a basic level, they would consider it. BTW – which is worse for the public as a whole – no specialty care (because if the case does not require “emergent” surgery versus “urgent” surgery – I can’t even transfer the patient and without insurance, they will likely get NO care), or care with immunities attached? Even if we would assume a ridiculously high rate of “poor” care, say 3%, 97% of the public is better off and the 3% is no worse than they are now.

    • Matt says:

      Of course, this assumes that their fear is reasonable. Since there are no hard statistics, it’s impossible to say. Are you advocating all policy be made based on fears which may or may not reflect the truth?

      “Right now, as I sit at work, I have no hand surgery, pulmonolgy, neurology, or plastic surgery available.”

      If we give you the protection we seek, do you promise to give us those? And to repeal the law if we don’t get it? How many of each per capita do we get?

      In states that already have tort reform, how has this worked? Does rural California have plenty of each of the aforementioned specialties after 30 years of it? If not, why should we believe you this time?

      • Fyrdoc says:

        “If we give you the protection we seek, do you promise to give us those?”

        Nope. But can you explain to me how the public will be worse off than they are now with no care providers and no chance of getting the care they need (BTW – that also means no one for you to sue)?

  28. Matt says:

    Yeah. They can have the same thing plus be unable to recover when you are negligent. You’re not promising them any more providers.

    • Fyrdoc says:

      When who is negligent? The non-existant provider? The emergency physician? Please, almost all EDs are moving to electronic medical record systems with built in prompts designed by lawyers (e.g., the Sullivan Group) so that every chart is completed to a point where we are doing so many tests for every complaint or admitting them for continuing tests in an effort not to get sued. It seems to work, but at what cost? I know, I know, the practice of defensive medicine is a myth. Except that you fail to realize that defensive medicine has become the standard of care. The easiest example is chest pain. Under the current AHA guidelines, a person with chest pain, and ANY risk factor for acute coronary syndrome, including extremely remote risks, requires admission for advanced testing. Why? Because the best designed system for ruling out heart attacks in the emergency department will still miss ~1.5 -2 % (although many will argue these are actually events that occured AFTER presentation and do not represent a realistic increase from baseline). Hospitals across the country have built entire “observation units” attached to their emergency departments for this purpose. But hey, these are fictional departments, generating fictional bills for fictional work-ups, right?

      • Matt says:

        Like I said if you want additional protection give us a guarantee beyond the same promises you’ve been breaking forever.

      • Fyrdoc says:

        Same old song and dance Matt. The systems isn’t broke, doesn’t need fixing, and if it does don’t ask the people doing the work how to fix it – leave it to the lawyers, they’ve done a great job fixing everything else.

        Whatever.

        I really wish we were allowed to select our patients in the ED, or at least refuse to treat particular individuals. Something tells me natural selection would rid us of so many lawyers so fast that nothing but an improvement in the country as a whole would be realized.

        And THAT is a guarantee!

      • Elizabeth says:

        I really wish we were allowed to select our patients in the ED, or at least refuse to treat particular individuals. Something tells me natural selection would rid us of so many lawyers so fast that nothing but an improvement in the country as a whole would be realized.

        “In every house where I come I will enter only for the good of my patients, keeping myself far from all intentional ill-doing.”

        I suppose your wish is not intentional ill-doing, but this really seems like getting off on a technicality to me. Would you really wish a whole profession to die without medical treatment simply to save yourself some dough?

  29. Matt says:

    I didn’t expect much from you and you didn’t disappoint. Get back to me when you have something the public can count on in exchange for insulating you from your error.

  30. dirk says:

    matt: get back to us when you have something new to say.

  31. […] a recent post, I asked the question whether or not people would favor providing some type of immunity to […]

  32. Sven Inda says:

    I am an ER physician 2 years out of residency. I was sued as a 2nd year resident on a patient that I admitted for fever/pneumonia that had a foley catheter placed after admission which damaged his artificial urethral sphincter. I had nothing to do with that placement, but because my name was on the chart I was named in the lawsuit. It took me 2 years to get dropped from that suit, all while I was trying to get my medical license in another state and apply for jobs. Even though I was dropped I still have to report this on every single application, license renewal, etc for the rest of my career. I have a black mark on my record even though I had nothing to do with the injury.

    I can tell you that more than half of what I order on a day-to-day basis in the ER is completely to protect myself from lawsuits; the 1 in a million chance that this 20 year old is having a heart attack with their chest pain.

    Tell me about the standard of care in an ER when 5 critically ill patients present within a 10min period in an ER after a major highway accident when you work in a 6 bed ER with 1 nurse and 1 tech. The ER doc is not given any slack depending on how busy / overwhelmed he is. He is treated as if each patient was the only one in the ER. I read somewhere that the average ER physician is interrupted approximately once every 2 minutes during his shift. It’s a hectic environment, hardly comparable to an office where everything is scheduled, or to the OR where you’re only dealing with one patient.

Leave a Reply


− 3 = four

Popular Authors

  • Greg Henry
  • Rick Bukata
  • Mark Plaster
  • Kevin Klauer
  • Jesse Pines
  • David Newman
  • Rich Levitan
  • Ghazala Sharieff
  • Nicholas Genes
  • Jeannette Wolfe
  • William Sullivan
  • Michael Silverman

Subscribe to EPM