Proposed Ohio law may soon allow the "careless" back in emergency room medical "care"

Patients Beware, Proposed Ohio law may soon allow the "careless" back in emergency room medical "care".

A new bill recently proposed by the Ohio legislature, SB 129, would actually make emergency room doctors and some of their staff immune from liability for any careless medical care they give. This means personal injury lawyers like myself would have to tell their clients crippled by the carelessness of emergency room doctors that they have no right to collect any money whatsoever, even if the doctor admits he was careless. This bill as currently written is unconscionable, unnecessary and wrong, and most lawyers know it. What's even worse, the Ohio public does not even knows what is about to happen.

 

Let me start by saying that by far ER doctors provide great medical service, but once in a while a doctor is careless, and Ohio law provides that the doctor must compensate the injured patient if this carelessness results in an injury to the patient. This is why doctors buy malpractice insurance.

 

That being said, the rights of patients in Ohio to sue and collect damages for doctors who provide careless medical treatment have been under attack for some time. First, caps on pain and suffering for medical malpractice cases left the seriously injured receiving pennies on the dollar compared to other states. Now, the actual ability to sue one group of doctors for careless behavior is being destroyed. The battle to destroy patient's rights is now focused on Emergency Room doctor liability.

 

When a doctor in Ohio injures an Ohioan during treatment or diagnosis of an injury, Ohio law currently provides that the doctor is liable for damages to the injured patient if the doctor was negligent and that negligence caused the patient's injuries. Simply stated, in order to be negligent, the doctor must be careless, and to be careless, the doctor must provide medical care below the standard of medical care of doctors in the area. It is an age old standard that doctors must meet while practicing. Doctors don't have to be perfect, they simply have to provide medical care at least as good as the medical care provided by all the other doctors in their city or town. This standard has worked forever, and seems like a fair standard to hold doctors to, but not anymore.

 

Ohio Senate Bill 129, introduced this week, seeks to change this age old standard when it pertains to emergency room doctor liability. Under new proposed Sec. 2305.2310 (B) (1), emergency room doctors will only be held accountable in a court of law for injuries to patients they caused if they act with a reckless disregard for the consequences so as to affect the life or health of the patient. This new standard of medical malpractice is a drastic departure from the age old standard of care that doctors are held to in Ohio. The ER doctor is not liable for being careless any more. He or she must act with reckless disregard to be liable. This is much harder to prove, and dramatically raises the burden on injured patients crippled by the acts of an ER doctor.

 

The bill masks its true intention by saying it only applies to ER doctors who provide emergency services "in compliance with the federal Emergency Medical Treatment and Active Labor Act. " EMTALA applies only to "participating hospitals" -- i.e., to hospitals which have entered into "provider agreements" under which they will accept payment from the Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS) under the Medicare program for services provided to beneficiaries of that program. In practical terms, this means that it applies to virtually all hospitals in the U.S. I am a lawyer, and I had to read the bill more than once to understand exactly what it was saying.

 

I want to give you some perspective on ER doctors only being liable for their reckless behavior. To give you an example, it is the equivalent of saying ER doctors are no longer liable for careless, inattentive driving while on Ohio roads, and they are only liable if they are recklessly driving, such as when they are drag racing or driving drunk. This is not fair to injured Ohioans. What reason justifies providing ER doctors such sweeping immunity that most other Ohio doctors don't enjoy. Under the proposed law, ER doctors would no longer have to provide medical care of equal quality to their peers. They just can't be drunk while performing procedures, decide not to read the chart, or act in other reckless ways.

Patients Rights in Ohio have been under attack for years: Doctor immunity already gaining traction in other areas

A recent Ohio Supreme Court ruling has limited a Ohio patient's right to sue for medical malpractice depending on where the treatment occurred and who was present for the treatment. In Theobald v. University of Cincinnati, the Court ruled that when a doctor is negligent in treating a patient, the physician is immune from liability as long as a medical student or resident was present during the treatment. The rationale was that the physician is legally considered to be a state employee acting within the scope of his or her employment, and therefore is immune from civil liability. This case dealt with "teaching" hospitals. Now, the Ohio legislature wants to extend immunity to basically all ER doctors for carelessness.

Other Safeguards already in place to protect doctors

1. affidavits: Ohio law already requires that a patient have a doctor sign an affidavit saying there is probably malpractice before a lawsuit can even proceed in court.
2. caps on punitive damages: In addition, Ohio law limits punitive damage awards, which are awarded to punish the doctor when the action was especially heinous, such as with intentional misconduct. Ohio Rev. Code Ann. § 2315.21(D).
3. Caps on pain and suffering: Ohio law already provides outrageously low caps on pain and suffering awards for injured Ohioans who are hurt by a doctor. So, for example, if a doctor cuts off the wrong leg during surgery, he only has to pay a maximum of $500,000 for the pain and suffering caused by the injury to that person, in addition to economic damages like lost wages and medical bills. Ohio Rev. Code Ann. § 2323.43. Similar limits exist for the pain and suffering of spouses. 

 

It is bad enough patients' rights in Ohio are under attack by the medical establishment, but they are destroying patient's rights for no reason. Tort reformers have already won, but they keep banging the "stop lawsuits against doctors" drum. There is no medical malpractice emergency in Ohio, and everyone knows it. First, the legislature left all Ohioans severely injured by medical carelessness without adequate compensation for pain and suffering, and now it appears they are planning to effectively take away the right to sue certain doctors all together for carelessness, starting with ER doctors

If you think $500,000 is a lot of money for pain and suffering, think again. If a doctor causes brain damage to your child at birth, he is liable for only $500,000 pain and suffering, in addition to economic damages, such as medical bills. This would be outrageous to the average Ohioan if they knew about it. But the average person does not know this. You see, nobody understands this law until someone they love is actually hurt by a doctor's carelessness.
What is so outrageous about the current cap system is that it provides peanuts to those most severely injured by medical carelessness, and leaves those who most need protection of the law without protection. Similar caps on personal injury cases outside of medical malpractice, such as car accidents, provide that the caps do not apply when the victim suffers a "permanent and substantial physical deformity, loss of use of a limb, loss of a bodily organ system, or permanent physical injury that prevents self-care." Ohio Rev. Code 2315.18 . This means that if you are crippled in a car accident, you will likely have no caps on your pain and suffering award, but if a doctor causes the same injury by his carelessness, the caps apply and you are out of luck. Try telling someone without a leg or crippled for life by the carelessness of a doctor that half a million dollars is fair compensation for a lifetime of physical pain and emotional suffering. Would you take that amount of money to be in a wheelchair for the rest of your life? I think not.

I cannot image why ER doctors should be allowed to be negligent /careless and have no financial consequences. There are already draconian measures, discussed above, in place in Ohio law to limit medical malpractice claims and curb lawsuits against Ohio doctors.

 

No reason for ER doctor immunity: Lawsuits against doctors on the decline.

Besides the fact that the new proposed law harms almost all patients who are crippled by the carelessness of ER doctors (non-disaster), a close examination of the facts clearly shows that there is no need for the immunity. In fact, it is common knowledge in legal and medical circles that medical malpractice claims have been on a continual decline for years. According to the Ohio Department of Insurance, claims dropped from 3,451 in 2007 to 3,080 in 2008. This follows a trend of decreasing number of filed claims. In addition, according to the report, nearly 74 percent of medical malpractice closed claims resulted in no payment to a claimant, and only 26 percent, or a total of only 814 claims closed with a payment being made. Average payout was $252,522. With hundreds of thousands of medical doctors, osteopaths, chiropractors, dentists, nurses, nursing assistants, nursing home care givers, etc, only 814 claims paid out. Hardly an epidemic.

Other data suggests medical malpractice claims were down by as much as 40 percent in the last decade, premiums for doctors are down by as much as 27 percent and more insurers are offering coverage to doctors. Also, just ask any medical malpractice lawyer. He will review 100 cases before finding one that is suitable for filing a lawsuit. The cost of litigating these cases is so high that only the most serious and meritorious claims are proceeding to court.

disaster treatment provision.

 

To fully appreciate the draconian nature of this proposed law, one only has to look at section (B) (2) of the bill. It provides that if the ER doctor is treating a patient from a disaster, the doctor is only accountable if they act with "willful and wanton misconduct." Without splitting legal semantic hairs, this is like saying that unless the ER doctor treating you for a disaster related injury intends to hurt you, you cannot sue him. I don't know about you, but when was the last time an ER doctor committed battery in the ER? Granted, disasters don't occur every day, but it does show how outrageous this new proposed law is.

 

Oddly enough, section D of the proposed bill, like the current law on pain and suffering caps already in place, provides that this ER doctor qualified (limited) immunity does not apply to wrongful death claims. This means that your ER doctor can be careless, cripple you and be immune from suit as long as he does not kill you. If he kills you, then he can then be sued for his carelessness. At least this part of the bill gives the doctor a financial incentive to keep you alive, I guess, and will hold them responsible when their carelessness actually kills someone. This is little compensation for those Ohio patients crippled by their doctor's carelessness though.

 

This new proposed law makes it virtually impossible to sue ER doctors for their carelessness. They will be immune from suit for all but the most egregious conduct. Do I think that all hospitals will start sending all of their patients through the ER to get immunity from suit for carelessness? No. But I do know that many people crippled by the carelessness and incompetence of ER doctors will go totally uncompensated.

Immunity for emergency care provided by physician assistant, dentist, or optometrist.

If this bill was not bad enough for injured patients in Ohio, it goes on to expand immunity beyond physicians. Section (B) (1) provides similar immunity for careless conduct by not only doctors, but physician assistants, dentists and optometrists. I was not aware that there was a rash of malpractice suits against dentists in Ohio that required such sweeping immunity for them.

If I was the average Ohioan, I would not want my ER doctor to know that he can be careless without financial accountability. I would want my ER doctor to be accountable for his or her carelessness. Pundits of tort reform ignore the undisputed facts that

 

1. medical malpractice lawsuits are on the decline
2. Ohioans crippled by the carelessness of Ohio doctors suffer because of caps on pain and suffering, caps on punitive damages, and now proposed immunity from suit for ER doctors.

 

People can debate whether this is a good law or not. But one thing cannot be debated. This law will leave Ohioans crippled by the carelessness of ER doctors uncompensated. They may lose their jobs, their houses, their lives as they know it, and the careless ER doctor will get off scott free.

 

As a personal injury lawyer, it is bad enough that I have to tell the parents of little children crippled by the carelessness of doctors that they cannot collect what is fair for their life long suffering, but now I may have to tell them that the ER doctor is not even liable for his carelessness and what he did to the child they love. This is wrong, plain and simple, and everyone who looks at this bill knows it. At the very least the legislature can make an immunity exception for catastrophic injury as they have already done for wrongful death.

David


link to bill: http://www.legislature.state.oh.us/bills.cfm?ID=129_SB_129