Sensitivity to Medical Malpractice and Defensive Medicine

This is a link to an article I wrote reviewing whether physicians that are more sensitive to malpractice are more likely to turn to defensive medicine: http://www.policyprescriptions.org/sensitivity-to-malpractice/

A Review of the No-Fault Liability System in France

This is a link to an article I recently wrote reviewing the use of a no-fault liability system in France over the past 10 years: http://www.policyprescriptions.org/crisis-becomes-opportunity/

Is the End of the $250,000 Malpractice Cap Looming Near?

In 1975, California was the first state to implement Tort Reform under the Medical Injury Compensation Reform Act. As a part of that law, non-economic damages (pain and suffering) in medical malpractice suits was capped at $250,000. Almost 40 years later, that law is still in effect. However, there is a proposed initiative that would raise this cap to $1.1 million (in order to adjust for inflation since 1975). The new measure would also allow this to continue increase to keep up with future inflation. Efforts are being made to try to put this in the November California ballot. If this does pass, it may be a sign of future change in Tort Reform.

House Passes Bill that Threatens to Shut Down the Government Unless all Spending on the ACA is Eliminated

With a week until the Health Exchange goes live, the House passed a bill that would only continue to fund the government if all spending on the Affordable Care Act is eliminated. Obviously President Obama and the Senate Democrats are not for this, which means the government may shut down if a compromise is not reached by October 1st. It has been reported that important government functions will continue (air traffic controllers, border security, social security, medicare), but that soldiers would not be paid (but have to report for duty), federal workers would have to go on unpaid leave. It is highly unlikely that this bill will pass through the Democratic-controlled Senate, but even if it does, President Obama says that he will veto the bill. This is an interesting last minute turn of events attempting to halt implementation of the new health care law. 

H.J.RES.59 -- Continuing Appropriations Resolution, 2014, September 10, 2013. http://thomas.loc.gov/cgi-bin/query/z?c113:H.J.RES.59:

House Bill Links Health Care Law and Budget Plan, New York Times, September 20, 2013. http://www.nytimes.com/2013/09/21/us/politics/house-spending-bill.html?hp&_r=0 

House Vote 478 - Passes Stopgap Spending Bill with No Health Law Funding, New York Times, September 20, 2013. http://politics.nytimes.com/congress/votes/113/house/1/478?ref=politics

Compensation for Personal Injury or Wrongful Death Arising from Medical Injury

A few months ago I wrote about a proposal in the Florida legislature to create a Patient 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. If there was a dispute, a judge would determine whether law was appropriately applied. Money that physicians currently pay for malpractice premiums would go towards funding the Patients’ Compensation System. This Bill was introduced in March 2013, Senate Bill 1134/House Bill 897.

 

I wanted to update you that this Bill did not pass. Even though the legislature did not pass in Florida, I personally believe this is a very interesting model to help curb liability and health care costs, and more importantly, compensate injured patients faster. I think other states may use this system as an example to consider when considering implementing novel tort reform practices.

 

References

1. Guglielmo, WJ. Movement to A No-Fault Liability System. Medscape. September 13, 2012. http://www.medscape.com/viewarticle/770384. Accessed September 17, 2013.

 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 17, 2013.

3. Compensation for Personal Injury or Wrongful Death Arising from Medical Injury. http://www.myfloridahouse.gov/Sections/Bills/billsdetail.aspx?BillId=50137 Accessed September 17, 2013

Update on Missed MI and Willful and Wanton Negligence in Texas

Last year I wrote about a case where a physician and hospital were found guilty of negligence for missing a Myocardial Infarction (i.e., heart attack) in a patient under the willful and wanton doctrine that was created in Texas as a part of tort reform. That case was appealed by the hospital and subsequently reversed. “We hold that the evidence of deviation from the standard of care by St. Mary’s nursing staff is legally insufficient to support the jury’s finding that the willful and wanton negligence of the hospital was a proximate cause of Stacy’s death.” It looks like Texas continues to hold very stringent requirements for determining medical negligence.

 

More information can be found here: http://setexasrecord.com/news/239006-st-mary-hospital-wins-appeal-of-1-2m-jury-verdict

 

My original blog post:

Monday, September 12, 2011 Missed Myocardial Infarction Held to Constitute Willful and Wanton Negligence in Texas As a part of Tort reform in Texas, in order to find a physician providing emergency medical services　guilty of negligence, the claimant must show that the doctor acted with willful and wanton negligence. Willful and wanton negligence is defined as　gross negligence. Plaintiffs must prove that ER doctors acted with conscious indifference, or gross negligence, rather than simple negligence. This is extremely difficult to prove and is one of the primary reasons for the decrease in medical malpractice cases against emergency medicine physicians in Texas. However, recently a Texas court held a hospital liable for willful and wanton negligence for a missed MI. This is a rare precedent in Texas since the enactment of Tort Reform.　 An elderly woman with history of diabetes and hypertension presented to ER with chief complaint of chest pain, chest discomfort and chest tightness. She was triaged as level 3 (low severity level), given albuterol nebulizer treatments and discharged home with a prescription for captopril. She he died at home the next day, autopsy reported that cause of death was MI (severe atherosclerotic disease was seen).　 It was later determined that during her brief stay in the ER, she had 2 EKGs done (one EKG was reported normal but the other showed a Septal Infarct). 　 The treating physician settled out of court and the hospital was found liable for negligence.　 The court found that prematurely discharging a patient with chest pain, improperly interpreting EKG results, and prescribing medication without first determining the effect it will have on the patient’s cardiovascular system constituted willful and wanton negligence (gross negligence). 　

 

More information on this case can be found here: http://www.beaumontenterprise.com/news/article/St-Mary-s-found-negligent-in-ER-death-737829.php

Health Insurance Marketplace

Open enrollment for the new Health Insurance Marketplace created under the Affordable Care Act is set to debut on October 1st. There is a website that is available to apply for coverage, compare plans and enroll. The website also provides individuals information about whether they qualify for health insurance under the marketplace, qualify for lower cost insurance, what is available in their individual state marketplace, as well as what specific benefits are available for indivudials, families and small businessess. This site can be used by indiviudals that do not have insurance, as well as individuals with insurance looking to change their current insurance. The link to this website is: https://www.healthcare.gov/