A Novel Approach to Medical Liability Reform, No-Fault Liability

I have written multiple articles on Medical Liability and its reform.  Another idea has been proposed, institution of a no-fault liability system. There is currently a proposal in the Florida legislature to create what they have named, a Patients’ Compensation System.  In this system, an injured patient would file a claim with the help of a patient advocate, a medical review department would research and review the claim, a fee schedule would be used to determine and recommend an amount for economic and non-economic damages.₁  If there was a dispute, a judge would determine whether law was appropriately applied. 

The proposed system would hypothetically be faster and also much cheaper than the current system.₂  It is also believed that by removing blame from the equation, physicians will be less likely to practice defensive medicine, which in turn would help lower cost of medical care by billions.  “If an effective no-fault PCS would be enacted, and assuming a slow change in physicians' defensive medicine behavior, first year savings for payors could be $1.5 billion; that number may grow to annual savings exceeding $16 billion when physicians have reduced their defensive medicine practices significantly.” ₃ 

Money that physicians currently pay for malpractice premiums would go towards funding the Patients’ Compensation System.

I think this is a very interesting system to help curb liability and health care costs, and more importantly, compensate injured patients faster.  I will be keeping a close watch on how this develops.

 

References

1.      Guglielmo, WJ. Movement to A No-Fault Liability System.  Medscape. September 13, 2012.  http://www.medscape.com/viewarticle/770384.  Accessed September 18, 2012.

2.      Latner, AW.  Florida Considers patient Compensation System.. The Clinical Advisor. February 21, 2012. http://www.clinicaladvisor.com/florida-considers-patient-compensation-system/article/228551/ Accessed September 18, 2012.

3.      Bioscience Valuation. The economics of defensive medicine and no-fault patients' compensation systems: Florida. July 6, 2012. http://www.patientsforfaircompensation.org/media/21160/bioscience-fl.pdf Accessed September 18, 2012.

Are Health Care Workers Ethically Obligated to Receive Influenza Vaccinations?

I recently wrote a post about a new law in Texas requiring health care facilities to require their employees to obtain vaccinations, including the influenza vaccination. The National Vaccine Advisory Committee also announced that health care facilities should consider requiring their employees to receive influenza vaccinations. 

 

I then came across a very interesting perspective.  An ethicist recently wrote an article about this topic, proposing that health care workers are ethically obligated to get the influenza vaccination.  I agree with his view point.  Influenza is a very communicable, but preventable disease.  Health care providers are susceptible to obtaining the virus from their patients, and passing it on to other patients.  By nature, we are also tempted, even feel obligated to work when ill (and still infectious).  We take an oath to do no harm to our patients, and one of the easiest ways to do so is to obtain vaccinations for communicable diseases.

 

 

A link to the article can be found here:

Why Hospital Workers Should be Forced to Get Flu Shots,

http://www.medscape.com/viewarticle/770383

New Law in Texas Requires Vaccination of Healthcare Providers

It has been well documented that unvaccinated health care workers have been implicated in hospital outbreaks of influenza.  A new law in Texas seeks to help reduce these outbreaks.  Starting September 1, health care facilities (hospitals, nursing homes, dialysis centers, ambulatory surgical centers, birthing centers, freestanding ERs) will be required to implement preventable disease immunization policies.

Health care workers can be exempt from the policy for health reasons, but they will have to take precautions if they have contact with patients (e.g., wear masks).

Hopefully implementation of this new law will aid in preventing the spread of vaccine-preventable diseases and help improve patient health and safety.

More information can be found in the August 2012 issue of Texas Medicine:

Code, C.  Lifesaving Shots.  Texas Medicine.  August 2012.

Massachusetts Implements Program for Disclosing Mistakes, Apologizing and Offering Compensation In Lieu of Litigation

In an effort to reform Medical Liability, Massachusetts has created what they call the “Road Map to Reform,’’  The purpose of this plan is for doctors and nurses to fully disclose mistakes to patients and apologize.  In addition, anyone, including patients or family members, can report a suspected error.  At that point the hospital will investigate the situation and determine if the medical staff or the hospital was at fault.  If they determine they were at fault, they will apologize and work with their malpractice insurers to determine the amount of compensation. Patients who accept the financial settlement surrender their right to sue, but those who decline the settlement can pursue legal action. On average in Massachusetts it takes 5 1/2 years for patients to be awarded money in the traditional litigation system, so this also creates a way for patients to receive financial compensation for their injuries earlier than the traditional litigation system.

This effort will first be tested out in 7 hospitals before implementing it statewide. The purpose of the program is to increase reporting of medical mistakes and cut down on lengthy litigation that they believe drives up health care costs.

Similar programs have been implemented in other states, and have been successful in decreasing the number of malpractice claims in addition to a decreasing the cost of medical liability insurance.

It is good ethical practice for health care workers to acknowledge their mistakes and apologize.  These types of programs may be a way to improve that practice, decrease litigation and help the injured party receive compensation earlier than in the traditional programs.

More information can be found in this recent article:

Kowalczyk, L. Massachusetts Hospitals Promise Openness, Apologies.  The Boston Globe.  Available at: http://bostonglobe.com/metro/2012/04/18/mass-hospitals-promise-openness-apologies/z7HH8c8J1aPUf2d4lYggvM/story.html

Governor of Washington State Suspends Policy that Would have Denied Payment for Certain ED Visits made by Medicaid Patients

In February I wrote about Washington State legislators enacting a law that would deny payment for ED visits that were deemed medically unnecessary. This law was set to take effect on April 1st of this year. However, Governor Chris Gregoire of Washington state recently announced that she is suspending this policy and is considering implementing the alternatives that were suggested and discussed in my original blog.

Friday, February 10, 2012

Update on Washington State Health Care Authority Denying Payment for Emergency Services of Medicaid Patients

Earlier this week I wrote about a new law in Washington State that would deny payment for all Emergency Department Visits that the Washington State Health Care Authority (HCA) deems "not medically necessary" in the ER. The Washington Chapter of the American College of Emergency Physicians, the Washington State Medical Association, and the Washington State Hospital Association have joined forces and have created an online petition to stop this. The petition can be found at http://www.thepetitionsite.com/3/stop-denying-payment-of-emergency-services-to-medicaid-patients/

In addition to the petition, they offer suggestions to save health care costs without denying Medicaid payments for Emergency Department visits. Their suggestions include:

• Reducing ED visits for narcotic-seeking behavior.
• Increasing access to primary care and reducing ED visits by collaborative use of next-day or same-day visits to primary care.
• Creating a "Generics First" initiative spearheaded by physicians to voluntarily develop a statewide drug formulary.
• Instituting an extensive case management program to reduce ED utilization by frequent users.
• Tracking emergency room visits to reduce ED shopping.

The new rule is set to take effect on April 1st. I will be watching closely for any updates

Regulation of Freestanding Emergency Departments

With the advent of new rules being implemented by health care reform, there will be an increasing need for access to health care.  In Texas, freestanding EDs have been created in an attempt to help increase access to health care.  However, what some do not realize, not all health care insurance will cover or reimburse for services provided by some of these EDs 

Texas currently licenses 37 freestanding emergency care clinics most of which are in the Houston area). Currently, Texas legislation requires that freestanding EDs must abide by EMTALA, provide laboratory testing necessary for emergency situations, provide radiology services such as X-ray, CT scans, ultrasound, be staffed by physicians and nurses trained in emergency medicine and have the ability to provide for patient transfers between the freestanding ERs and other medical facilities.

Starting September 1, 2012, Texas will require all freestanding emergency departments to be open 24 hours a day, 7 days a week. After this date, only licensed emergency centers may use emergency terminology (e.g, emergency or ER).to advertise themselves.  Hospital extension ERs do not have to abide by these rules.  Some insurers argue that if the freestanding ED is not associated with a hospital or open 24/7, that it is not an ED for billing purposes, and that has been their argument for not paying or reimbursing for these services.  It is believed that after implementation of these rules it may aid with the current insurance problems.

Other states are dealing with these facilities in different ways.  For example, a Washington State Senator has been trying for many years to obtain a moratorium on freestanding EDs until their effect on the health care system can be analyzed.  CMS is also trying to figure out how to deal with these centers as well.

As the increase in access to health care continues over the next few years, it will be very interesting to see what happens with these facilities, if their implementation expands across the country and the effect on regulations.

More information can be found in the following resources:

·         Texas Department of State Health Services, Freestanding Emergency Medical Care Facilities, 25 TAC §131.  Available at: http://info.sos.state.tx.us/pls/pub/readtac$ext.ViewTAC?tac_view=4&ti=25&pt=1&ch=131

·         Texas Department of State Health Services, Directories of Freestanding Emergency Medical Care Facilities, Available at: http://www.dshs.state.tx.us/hfp/apps.shtm#freestanding

·         Eldridge, K. Eliminating Patient Confusion: New Regulations for Freestanding Emergency Rooms, iTriage. Available at: http://blog.itriagehealth.com/eliminating-patient-confusion-regulations-freestanding-emergency-rooms/

·         SoRelle, R.  The Emergence of Freestanding ED’s, Emergency Medicine News, June 2011.

·         SoRelle, R.  Washington Legislator Seeks to Stall Freestanding ERs, Emergency Medicine News, April 2012.

·         Welch, S.  My Night at Elite Care,  Emergency Medicine News, February 2012.

Texas Considering Changing Stem-Cell Transplant Rule

The Governor of Texas, Rick Perry, recently encouraged the Texas Medical Board to pass a rule covering adult stem-cell transplants (removing a patient’s own stem-cells and reinserting them at a later day).  Ironically this was prompted after the Governor had this same procedure performed on himself in July to help recovery from back injury. 

Although the FDA currently requires physicians to obtain approval before offering these experimental treatments, the proposed new rule would allow doctors to bypass the FDA and would be subjected to a Texas independent review board.  They feel that adult stem cells are not subject to FDA approval.  The FDA position is that they do not comment on specific state regulations or proposed regulations, but contend that they have reports that they have regulatory authority over “human cells, tissues and /or cellular and tissue-based products.” 

I personally feel these types of treatments are governed by the FDA and if these treatments are used without FDA approval, Texas could be on shaky ground with regards to federal laws currently in place.

More information can be found here:

Koppel, N.  Texas Eyes Change In Stem-Cell Rules.  Wall Street Journal. April 13, 2012.

Summary of the Supreme Court Arguments on the Affordable Care Act

Last week the Supreme Court heard oral arguments in support of and against the Affordable care act.  The first day covered whether they could even rule on constitutionality of the Affordable Care Act now, or if they must wait until the law actually takes effect in 2014.  There was discussion as to whether the Anti-injunction Act would apply to this situation.  The Anti-injunction Act says that taxes cannot be challenged until they are actually enforced.   The tone from the arguments and the court seems to be that the ACA is not a tax therefore unlikely that the Anti-injunction Act would apply.

The second day covered the much debated and controversial individual mandate.  The Court deliberated whether Congress can require individuals to purchase insurance and whether they can impose a penalty on those that do not purchase health insurance.  Some of the arguments in support of the individual mandate are that individuals should be required to buy into insurance when they are healthy, rather than just waiting until they are ill and then trying to obtain health insurance.  This would further help preventative health, by encouraging healthy individuals to get preventive screenings to help insure they maintain their good health and prevent or catch potentially negative outcome earlier.  Supporters of the individual mandate argue that Congress has the power to enforce the individual mandate under the Commerce Clause.  Opponents to the individual mandate argue that it is unconstitutional for Congress to force people to purchase health insurance.  There was also some discussion of whether if the Government forces citizens to purchase health insurance, than will this will allow them to force citizens to purchase other things in the future.  There has been argument that if you allow Congress force people to purchase health insurance, that next they can force people to buy vegetables or health club memberships.  However there is a clear difference.  Everyone at some point in their life will need some type of health care.

The last day of arguments covered the issue of if the Court does strike down the individual mandate, does it strike down the entire Affordable Care Act. There was some discussion that if they do strike down the individual mandate, it will be difficult to force insurers to ensure everyone, even those with preexisting conditions can obtain health insurance.  However they did feel that some of the provisions may be upheld.

The last day also included discussions of whether expansion of the Medicaid program under the Affordable Care Act will encroach on the rights of the States.  There were arguments that this provision coerces states to comply by giving them an offer they can’t refuse

After the 3 days of oral arguments, the Justices met to cast preliminary votes, but the final decision will not be made public until June.

Supreme Court Hears Oral Arguments on Health Care Law, http://www.jdsupra.com/post/documentViewer.aspx?fid=62b55af7-cb87-4e7a-aa4f-d958a7287521

Transcripts from Day 1 Supreme Court Oral Arguments on Health Care Law, http://www.nationaljournal.com/healthcare/transcript-day-1-supreme-court-oral-arguments-on-health-care-law-20120326

Transcripts from Day Two of Supreme Court Oral Arguments on Health Care Law, http://nationaljournal.com/healthcare/transcripts-from-day-two-of-supreme-court-oral-arguments-on-health-care-law-20120327

Transcripts from Day Three of Supreme Court Oral Arguments on Health Care Law, http://www.nationaljournal.com/healthcare/transcripts-from-day-three-of-supreme-court-oral-arguments-on-health-care-law-20120328

Transcripts from Day Three of Supreme Court Arguments, Part Two, http://nationaljournal.com/healthcare/transcripts-from-day-three-of-supreme-court-arguments-part-two-20120328?mrefid=site_search

Vicini, J. U.S. Supreme Court Takes up Healthcare in Secrecy, http://www.medscape.com/viewarticle/761316

Supreme Court Oral Arguments on the Constitutionality of the Affordable Care Act Set to Begin on March 26th

The much anticipated Supreme Court oral arguments on the Affordable Care Act are set to begin on Monday, March 26th.  The first day of arguments is set to cover whether the court can even decide on the Constitutionality of the Affordable Care Act this year, or if it must wait until the law actually takes effect in 2014.  The oral arguments on March 26th will cover the individual mandate, whether Congress can require individuals to purchase insurance and whether they can impose a penalty on those that do not purchase health insurance.  The last day of oral arguments is on March 27th and will cover the issue of if the Court does strike down the individual mandate, does it strike down the entire Affordable Care Act.  On the last day, they will also address whether expansion of the Medicaid program under the Affordable Care Act will encroach on the rights of the States.

It will be very interesting to see the arguments unfold.  Although the arguments will be completed this week, a decision from the Court won't be made until sometime this summer.

House of Representatives Passes Bill that Would Create National Medical Liability Reform

Today, with a vote of  223-181,  the Republican controlled House of Representatives passed what could be national medical liability reform, or what some call "Tort Reform."  The bill places a $250,000 cap on non-economic damages (pain and suffering), caps punitive damages at $250,000 or two times economic damages, sets a statute of limitations at 3 years.  These reforms would be similar to those regulations already in place in Texas and California. 

Proponents of national Tort Reform should not start celebrating yet.  Most believe it is unlikely that this bill will be passed in the Democratic controlled Senate.

I will be keeping a close eye on this topic and will update the blog with the latest developments.

Doctors Believe that Use of mHealth Technology by Patients with Chronic Medical Conditions may Reduce Clinic Visits

A few months ago I wrote a blog article about mHealth technology.  mHealth, or mobile health, is a method of enhancing health and medical practices with mobile technology.  This is technology that is used by both doctors and patients.  This area of technology is growing rapidly.  Apple currently has over 10,000 medical/health care related apps  (last year they only had about 1,500).

A recent study shows that physicians believe that as patients start to use mHealth technology that helps them monitor their medical conditions at home, for example, monitoring blood sugar or blood pressure, it may help reduce the number of clinic visits.

Bailey, R. mHealth: A Descriptive Analysis of the Technology that is Changing the Practice of Medicine, What’s Up in Emergency Medicine, February 2011, http://www.emra.org/emra_articles.aspx?id=43536

Murphy, S.  Doctors Believe Using Health Apps Will Cut Down on Visits, Mashable Tech, March 2012, http://mashable.com/2012/03/12/mobile-health/

Medicaid Beneficiaries have more Barriers to Obtaining Primary Care and are More Likely to Make ER Visits than those Individuals with Private Insurance

As the different phases of health care reform are implemented over the next few years, it is anticipated that more people will obtain access to health care in the United States than ever before.  A large number of these individuals will obtain health care through the current Medicaid program.  However, there are many concerns about how these individuals will be able to obtain timely access to care and how it will affect the overall health care system. 

A study recently published in the Annals of Emergency Medicine reports that compared with individuals with private insurance, individuals with Medicaid are more likely to have one or more barriers to obtaining medical care from primary care doctors and end up making more visits to Emergency Rooms for their primary care needs.  They identified 5 barriers that these individuals face:  (unable to get through on the telephone, unable to obtain a timely appointment, long wait in the physician’s office, limited office hours, and lack of transportation).

Some of the solutions the authors offer are to, increase the number of primary care doctors, as well as increase the number and hours of Community Health Centers.  This would aid to increased primary care access for these individuals rather than them having to go the ER.  This also may aid in slowing the current problem of ER overcrowding.

This issue is especially important in states like Washington where there is currently a consideration of not paying for non-emergent medical visits made by Medicaid beneficiaries.  I agree with the authors of this article.  There is definitely a huge need for the increase in the number of primary care doctors and a huge need for the increase of clinics and increase in their hours of operation.  These solutions may aid in reducing the number of primary care visits made in the Emergency Room.

The full article can be found here:

Cheung, PT et. al, National Study of Barriers to Timely Primary Care and Emergency Department Utilization Among Medicaid Beneficiaries, Annals of Emergency Medicine 2012; 20 (1) 1-9;  http://www.annemergmed.com/webfiles/images/journals/ymem/FA-PTCheung.pdf

Secret Recording Held Admissible in a Medical Malpractice Lawsuit

A court in Ohio recently held that a secretly recorded conversation made by relatives of a patient and a physician can be admissible in a medical malpractice, wrongful death case against the physician.  In this case the patient had cardiac arrest and was declared brain dead two days after knee surgery.   It was later determined that the cardiac arrest was caused by a high potassium level. The family of the patient met with the Chief Medical Officer of the hospital after the patient arrested, but prior to his death.  The doctor was apologetic and admitted fault on the part of the hospital. 

In some states, like Ohio, it is legal for one person to record a conversation without the other party’s knowledge.  If physicians are concerned that their conversations are being recorded without their wishes, they can create a no recording policy and visibly post the policy in their office or hospital.

The Physician Payment Sunshine Provision

Under a proposed federal rule, the Physician Payment Sunshine Provision of the Affordable Care Act, drug companies, medical device and medical equipment manufacturers will have to disclose payments and gifts they make to physicians and hospitals. Under this rule, companies would have to report any gifts, food, educational or conference funding, charitable contribution and payments over $10 (or with a total annual amount exceeding $100) made to physicians and or hospitals. They will also be required to report stock ownership or investments in the companies by physicians. The purpose of the provision is to ensure transparency, prevent conflicts of interest and discourage any potential influence on clinical decision making.

If the companies do not comply with the provision they could face a $150,000 fine for failing to make the report and up to $ 1 million for failing to report transfers of value.  CMS anticipates beginning requiring data collection sometime in 2012, with reports due sometime in 2013.  The final rule is set to be published in a few months.

Physician Payments Sunshine Provisions in Health Care Reform, http://www.prescriptionproject.org/tools/sunshine_docs/files/Sunshine-fact-sheet-6.07.10.pdf

Why Small Gifts Matter, http://www.prescriptionproject.org/tools/sunshine_docs/files/WhySmallGifts_CB.pdf

Physician Held Liable for Negligent Infliction of Emotional Distress

A Pennsylvania court recently ruled that doctors can now be held liable for emotional distress even if they were not negligent.  In this particular case, the plaintiff had an ultrasound performed during her pregnancy and was told by the Radiologist that the ultrasound was normal, specifically that the baby was healthy and normal.  Four months later she delivered a child with partial arms and legs, hypoglossia, micrognathia and other congenital anomalies.  After the delivery she reported grief, rage, nightmares, anxiety, and insomnia, and continued to have these problems thereafter.

The plaintiff sued for negligent inflection of emotional distress, arguing that the doctor did not prepare her for the shock of the birth of a child with deformities.  In support of their decision, the court argued that it was reasonably foreseeable that the patient would suffer emotional distress during the birth of her child if not given the results of the ultrasound in advance.  They held that because doctors have a fiduciary duty to their patients, they have a legal and ethical responsibility to care for their patients’ wellbeing, including providing accurate information about test results when it is foreseeable that the test results may cause emotional distress.

Some argue that this precedent will cause and increase in emotional distress lawsuits against physicians.  We will have to wait and see if there will be a change in the litigation climate.

Toney v. Chester County Hospital, Pennsylvania Supreme Court, Middle Dist. 2011

Undocumented Immigrants will Remain Uninsured Under Health Care Reform

At the hospital where I work, a large portion of the patients we see and care for are undocumented immigrants.  Under the new health care reform laws set to take effect, many people who currently don't have health insurance will get coverage.  However, undocumented immigrants (estimated to be between 4 and 7 million) will  remain uninsured under health care reform.  Undocumented immigrants will remain ineligible for Medicaid and will also be prohibited from buying private health coverage in the exchanges.  These individuals will have to continue to receive health care from any available state programs, like the one available in our county.

New Law to Encourage Schools to have Epinephrine Available for Any Student with an Allergic Reaction

Six million children (one in twelve) in the United States suffer from some sort of food allergy.  However, parents are responsible for obtaining a prescription for Epinephrine (EpiPen) and having it available in school for them in case of emergency (for example if they have a life threatening anaphylactic reaction).  Children with unknown allergies or who may not have the medication available at school may be at danger if they do have an allergic reaction at school, because the medication is often not available.  However there is a new Act that may change this.  The School Access to Emergency Epinephrine Act, introduced in the U.S. Senate in November and the U.S. House of Representatives in December 2011, encourages states to allow schools to have epinephrine on hand for use in any student who is having a serious allergic reaction.

Update on Washington State Health Care Authority Denying Payment for Emergency Services of Medicaid Patients

Earlier this week I wrote about a new law in Washington State that would deny payment for all Emergency Department Visits that the Washington State Health Care Authority (HCA) deems "not medically necessary" in the ER.  The Washington Chapter of the American College of Emergency Physicians, the Washington State Medical Association, and the Washington State Hospital Association have joined forces and have created an online petition to stop this.  The petition can be found at http://www.thepetitionsite.com/3/stop-denying-payment-of-emergency-services-to-medicaid-patients/

In addition to the petition, they offer suggestions to save health care costs without denying Medicaid payments for Emergency Department visits.  Their suggestions include:

• Reducing ED visits for narcotic-seeking behavior.
• Increasing access to primary care and reducing ED visits by collaborative use of next-day or same-day visits to primary care.
• Creating a "Generics First" initiative spearheaded by physicians to voluntarily develop a statewide drug formulary.
• Instituting an extensive case management program to reduce ED utilization by frequent users.
• Tracking emergency room visits to reduce ED shopping.

The new rule is set to take effect on April 1st.  I will be watching closely for any updates.

Washington State Plans to Deny Medicaid Payments for All Medically Unnecessary Emergency Room Visits

A few months ago I wrote about Washington State limiting ER visits to 3 per year for Medicaid patients.  That rule was overturned in November, but things in Washington have changed drastically.  Under a new rule, Medicaid will no longer pay for any medically unnecessary emergency-room visits, even when patients or parents have reason to believe they're having an emergency. ER services not paid by Medicaid won’t be billed to the patient, but the doctor and the hospital will not receive payment for the services. They report that the point of the rule is to attempt to cut health care costs by deterring patients with non-emergency conditions from going to the ER and going to a primary care facility instead.

The new rule is set to take effect on April 1^st of this year.  If this rule takes effect, it will be the most restrictive ER Medicaid program in the country