COLUMBUS, Ohio — State by state, emergency physicians are winning added protections against malpractice suits through new laws that can provide near-immunity from most emergency department mistakes.
Proponents promise the laws will bring an end to the emergency doctor shortage and protect physicians from frivolous suits.
While the laws would protect doctors from their emergency-room errors, they would do little (or even work against efforts) to solve the root problems that contribute to emergency room mistakes. Could laws that shield physicians from financial penalties for mistakes quiet discussions about understaffing and overcrowding in ERs?
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“There will be no incentive to have any kind of quality control,” said Dennis Lansdowne, a partner and malpractice attorney at Spangenberg, Shibley & Liber in Cleveland who has reviewed Ohio’s version of the proposal.
Ohio is the latest state to introduce new legislation that would dramatically increase the legal standard to win a civil suit against a doctor working at an emergency department. It also offers the same protection for doctors helping after floods, tornadoes or other disasters.
The bill says physicians would have qualified civil immunity while working in emergency rooms and be subject only to lawsuits if they showed “willful or wanton misconduct” — a high standard for liability usually reserved to determine punitive damages.
“We want them without the risk of an impending lawsuit hanging over their heads,” said State Sen. Steve Buehrer, the primary sponsor of the legislation.
The bill says that those protected by the law are specifically providing services in compliance with the federal Emergency Medical Treatment and Active Labor Act (EMTALA). However, some proponents said the legislation is meant to protect all physicians providing emergency-department care. A state Senate committee had its first hearing last week on the legislation and scheduled a second this week.
The Ohio State Bar Association is reviewing the legislation and likely will take a position in 10 days to two weeks, association lobbyist Bill Weisenberg said.
That bill is part of a second wave from states — including Arizona, Michigan, Minnesota and North Carolina — that seek such protections as well as special caps on damages in emergency-room civil suits. Utah approved its version of the law in March. These later efforts follow earlier successes in Florida, Georgia, Texas and South Carolina.
Medical groups say emergency physicians are among the most-sued doctors in the country. They’re the fourth out of five practices listed individually in Ohio’s Medical Professional Liability Closed Claim Report (pdf). Emergency physicians are sued almost as often as general surgeons, but less often than family practitioners and internists, according to state data.
They’re sued largely because it’s easier for them to make devastating mistakes in the hectic environment of an ER and because EMTALA mandates treatment for anyone who needs emergency care.
Physicians’ groups say the increased threat of lawsuits is behind a shortage of emergency-room physicians and the reason why other doctors resist working shifts in that department. About 11 percent of claims resulted in judgments against Ohio emergency physicians in 2007, the most recent year for the closed-claim report.
“We feel they deserve a little extra protection from simple medical malpractice so they can be that safety-net for anybody at any time,” said Laura Tiberi, executive director of the Ohio American College of Emergency Physicians. “Emergency physicians don’t choose their patients like others do.”
Texas credits malpractice reforms in 2003 — including its own emergency physician liability reform — for a resurgence in emergency medicine (pdf). Twenty-four mostly rural counties have added emergency medicine physicians since passage of the legislation, according to a report by the state and medical interest groups.
But other factors, like population growth in areas where new facilities and practices open, also could contribute to more facilities and physicians. Many states — including Ohio, which also passed reforms in 2003 — have said it’s still too early to say how legislation has contributed to change.
Tiberi said the legislation proposed in Ohio would ease issues including overcrowding and understaffing in emergency rooms. Wait times have increased nationwide, emergency room visits also have increased, and there’s increasing consensus that a shortage of emergency physicians and general surgeons will create a crisis in emergency departments. By decreasing the fear of litigation, physicians likely will return to emergency departments, Tiberi said.
Attorney Lansdowne doubts that. Instead, he predicts that many of the larger staffing companies that help manage emergency rooms would feel no need to make changes. They’re rewarded, in part, by the number of patients they see.
“People going into an emergency room have no choices — including what kind of emergency room they go to,” Lansdowne said. “They’re put in ambulances and often then they’re going to be treated by physicians who are overworked, underpaid and staffed by a corporation that really makes money by treating as many patients as they can.”
Emergency room physicians are protected already, as long as they act within the concept of the standard of care, and don’t deserve an exception beyond what other physicians receive, Lansdowne said. “They can be wrong, and as long as they act in accordance with standard of care, they are not liable,” he said.
“This is the last place we want to start giving immunity,” Lansdowne said. “Who goes to emergency rooms as much as anybody? The very young and very old. Your most vulnerable populations are at risk.”
