If a doctor injured you, would you want a jury of your peers to hear and decide your medical malpractice case? Or would you rather a panel of doctors determine whether you had the legal right to pursue a case?
A new House bill, sponsored by Rep. Andy Barr (R-KY), would provide doctors safe harbor against medical malpractice suits, by removing a plaintiff’s right to have their case heard in state courts.
In a nutshell, the Saving Lives, Saving Costs Act of 2014 goes something like this…
Three Representatives – who are doctors – are co-sponsoring a new House bill that proposes safe harbor for doctors from malpractice suits by giving a panel of doctors the authority to make decisions about whether or not a lawsuit is valid under guidelines established by doctors.
Supporters of the bill (1) package and present it as a tool to promote patient safety, but at its’ core, it is really a defense mechanism for doctors against medical liability litigation.
The bill is co-sponsored by 3 Representatives who practiced medicine before being elected. Ami Bera, M.D. (D-CA), an internal medicine specialist, served as Chief Medical Officer for Sacramento County for 20 years. Tom Price, M.D. (R-GA) is an orthopedic surgeon by trade. David Phillip Roe, M.D. (R-TN) is an OB/GYN.
Under this bill, medical professional organizations, such as the American Congress of Obstetrician and Gynecologists and the AMDA-Dedicated to Long-Term Care (2),would establish universal clinical practice guidelines. Those guidelines would then be used as a basis for allowing a medical professional named as a defendant in any healthcare liability suit to have the case moved from State court to Federal court.
Once removed to Federal court, the liability action would undergo a mandatory review by a medical review panel comprised of experts in specialties relevant to the case, and preferably from the geographic area where the case originated. Both parties in the case would pay the panel for their time, regardless of the outcome.
The review panel would first determine if the medical professional acted within accepted guidelines. If it were found that the medical professional did follow accepted guidelines, the case would be dismissed. If a medical professional failed to follow the guidelines, the panel would then decide if the failure caused the injury. If they find that the failure was not the cause, the case would be dismissed.
The bill offers further safe harbor in a provision that says no civil case may be brought against any member of the review panel for “any act done, failure to act, or statement of opinion made, within the scope of his or her duties as a member of the independent medical review panel.”
There is no evidence, however, that this safe harbor would actually promote patient safety. In fact, in Texas, where emergency room physicians have had immunity since 2003, patient safety has steadily decreased.
The American College of Emergency Physicians (ACEP) conducts a comprehensive and focused study of the emergency care environment nationwide and state-by-state. The ACEP issues a report card every 5 years. According to the ACEP’s most recent findings, in 2014, Texas received an “A” grade for its medical liability environment. (3) This is a result of Texas’ significant limitations on damages and the immunity allowed for emergency room providers. Despite having one of most anti-patient medical liability environments in the country, Texas received an “F” grade in patient safety, access to emergency care and public health / injury prevention. Texas is a prime example of why immunity and damage caps are not “good” for patient safety. Instead, such measures allow medical providers to practice substandard medicine with minimal to no repercussions or responsibility at all.
The Center for Justice and Democracy argues that clinical practice guidelines should not be used as a legal basis for determining negligence.(4) When guidelines are written by the very groups that will later determine negligence, it is conceivable that those guidelines will be written with the goal of acquitting peers in future liability cases.
The American Medical Association has expressed concerns about the use of guidelines as a legal standard. Past president of the AMA, Richard F. Corlin, M.D, stated, “insufficient evidence exists to show that clinical practice guidelines can be developed in a manner specific enough to be introduced as an affirmative defense in medical liability litigation.”
The burden of proof is already perched precariously on the shoulders of the plaintiff. Medical malpractice suits must undergo a rigorous process of discovery and proof before they are allowed to proceed in state courts. Under this bill, it would be even more difficult for an injured party to seek justice in a court of law, and to hold doctors accountable for negligence.
3. American College of Emergency Physicians Report Card: Texas
4. Clinical Practice Guidelines as Legal Standards – The Wrong Cure for Health Care