29 June 2009

Two Wrongs

Happy The Hospitalist has a post with a provocative title (as is his wont):
Should Emergency Physicians Be Given Immunity From Lawsuits?
which recaps a bill under consideration in Ohio:

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 [...] 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.

This is an interesting example of a legislative trend that seems to be gaining steam.  EMTALA is the pretext for this bill, and the "hook" that allowed Ohio ACEP to sell it to friendly legislature.   But it makes no sense at all.  There's no reason why the specialty of Emergency Medicine should be granted such great protection from malpractice liability compared to every other medical specialty.  Yes, we bear significant costs under EMTALA, which was an ill-conceived unfunded mandate which unfairly compels healthcare providers to work for free.  And yes, I believe that the medial liability system is unfair and too expensive.  I also agree that Emergency Medicine is an essential public health service, the proverbial safety net, and that access to emergency care needs to be protected and improved. 

But with respect, WTF does EMTALA have to do with med mal reform?

Nothing.  It's a great example of opportunism on the part of the EM lobby, and of the maxim that "hard cases make bad law."  If med mal is broken, it should be reformed.  If EMTALA is unjust, it should be funded or revised or made unnecessary through universal health insurance.  But to "make up" for one bad policy by creating a carve-out for one specialty in another bad policy is just, well, it's bad policy.

This law, I might add, is extremely broad.  I might even say excessive.  Based on my quick read of the text, it implies that any doc who provides any EMTALA-compliant service is shielded from liability.  Now I might have sympathy for a narrow law that basically shields docs who provide uncompensated care.   That would have a certain degree of quid-pro-quo fairness to it: you have to see this patient for free, so the state will exempt you from liability in this case.  Almost seems fair from the doc's point of view.   But this law would seems to apply to any patient whose presentation invoked EMTALA, which is to say any patient who "comes to the ER" -- even funded patients.  If someone comes in, I see them and they pay me for that service, why then should I be exempted from any consequences of my care?  It makes no sense.  Basically, what this would mean is that in Ohio, ER docs would be all-but-immunized from liability. 

Wow.  That's a big gift to ER docs.  But believe it or not, it's still inadequate to "make whole" the profession from the costs of EMTALA.  If we were to assume (optimistically) that the costs of med mal insurance and out of pocket expenses were to go to zero for ER docs as a result of this bill, that would save the typical ER practice 3-8% off their bottom line.  It's not uncommon, however, for ER groups to see 15-20% of their patients without insurance, and 25-40% of their patients as functionally unreimbursed, given the vagaries of Medicaid.  So the value of this carve-out still falls far short of the cost of EMTALA.

And never mind, of course, that if you are a patient harmed by an ER doc (it does happen from time to time) you are out of luck in seeking justice. 

Happy wonders whether this immunity would extend into the inpatient setting.  I suspect that would be a matter for a judge to interpret, but the case law of EMTALA suggests that necessary "stabilization" treatment is compelled under the act and so a decent argument could be made that "stabilization" treatment is covered and that particular cases would have to flesh out that boundary.

None of this is to argue that the current med mal system is just great and not in need of reform.   I can see why this approach has its appeal.  It's a lot easier than the real work of tackling med mal reform head on.  It addresses not one but two chronic grievances of ER docs.  It's more likely to bear fruit -- in most jurisdictions, ER docs have a certain credibility among lawmakers as the "good guys."  But a patch that is inadequate, logically disconnected from the problem, unfair to patients, and excessively broad is not the right solution.


  1. Does Ohio use a 'Wanton' standard for anything else? I'm generally skeptical of medmal reform proposals, but a standard beyond negligence may be the best solution. But just how far beyond negligence is wanton misconduct? Is it just something beyond the type of mistake that is bound to happen in a hectic emergency room? Is it ordering a dose of drugs an order of magnitude off that kills somoen? Or is it getting totally wasted on the job, and then personally administering the wrong drug in grossly excessive quanities cause you had no idea what you where doing? Without a better idea of just what rises to the level of wanton misconduct makes all the difference.

  2. You're not going to make many friends with this post, Shadowfizzy.

    But just how far beyond negligence is wanton misconduct?

    You'd have to look at medical malpractice cases where punitive damages were ordered.

  3. Dunno Ohio law and how this differs from Gross Negligence.

    I do know that Texas went from Simple Negligence (which should mean negligence by the physician resulted in harm but in practice means the patient had a bad outcome after seeing a doc) to Gross Negligence, which is, as I understand it, a Willful and Wanton standard.

    It's not a perfect solution. It is a solution, and if it's the same as ours, it has precedent.


  4. @Liam re: "that would save the typical ER practice 3-8% off their bottom line".

    While the basic point of your post is correct, it is all about a step towards a final goal.

    Would I prefer they keep things honest?

    Yes. But watching politics is like watching hamburger get made.

    The issue of med mal reform has always been about making an impact on inappropriate utilization.

    You just rehashing the PI position (which I am not criticizing) but it just surprises.

    As far as I know we don't have any data on the effects of med mal "reform" on utilization in states like Florida or Texas that passed bills on this (nor do I know enough about the specifics of their bills), although I have looked for the data.

    ... Interestingly I am sure insurers have the data and I find it more than a little curious that it has not been released.

    Perhaps it does not make a difference?

    This battle has/is and will always be been about inappropriate utilization.

    Keep your eye on the prize.

  5. Grunt Doc, do you have any data on whether utilization/admissions went down after your law was passed?

  6. is this just for ED docs or also specialists who take call/are obligated to see patients under emtala?

    if this law results in better specialist coverage by alleviating their fear of lawsuits, i would say the end justifies the means.

    time to start jobhunting in ohio!

  7. Instead of some sort of artificial limitation on damages or some sort of blanket immunity, I'd prefer to see some sort of acknowledgement that medicine is not perfect and that somethings slip through the cracks.

    Depending on the methodology and "positive" level, a series of negative troponins give a 99% sensitivity for MI. Does it need to go to that high? The number of false positives increases dramatically from 95% to 99%. We certainly aren't going to miss any big MIs, but we might save some money working up those false positives.

    There are numerous other similar examples, from imaging to other blood tests to various therapeutics. We spend a lot of money chasing low probability diagnoses. Most studies use 95% as their limit of significance. If a physician can, in the emergency setting, and using accepted evidence, exclude a diagnosis with 95% confidence or if the pretest probability is low enough that the test does not materially affect the post-test probability or if the risk of an outcome is similarly small, and you can demonstrate it to an independent board of physicians, one would be protected from suits.

    This isn't necessarily easy. It doesn't support the latest and greatest in technology and diagnostics and instead applies Canadian style decision rules. However, testing is only going to get better and more expensive while simultaneously increasing the false positive rate.


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