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What You Don’t Know Can Hurt You

House Bill 1474 Would Limit Emergency Room Liability In Malpractice Lawsuits

Marcus Michles, Attorney with Michles & Booth speaks at News Conference

The News

TALLAHASSEE, FL – Marcus Michles, Attorney at Law, along with Attorneys from the Florida Justice Association (FJA) spoke against the proposed House Bill 1474 at a Press Conference on March 24, 2010.  Several clients of Mr. Michles, victim of medical malpractice also spoke of the negligent acts that caused them physical, emotion and economic damage.

Videotape of the Press Conference is available on the Michles & Booth web site at www.ForTheVictims.com

The Facts

GOP Senator John Thrasher (former lobbyist for the Florida Medical Association) is sponsoring HB1474.  This bill would grant Sovereign Immunity to emergency room personnel (doctors, hospitals, nurses, staff, etc.).  1474 would make the ER providers state employees and would cap any malpractice verdict at $200,000 per incident.

Imagine

You are a hardworking middle aged Floridian with a job, wife and children.  You provide and care for them by your family goals and your income.

You develop chest pain one evening and your wife takes you to the local Emergency Room.  You rely on the physician there to diagnose your condition and treat you.  When you are seen the physician spends about 2 minutes with you and orders an antacid drink which is given.  Some of your pain is relieved and you are discharged with instructions to follow up with your physician.  The only thing the physician writes in your record is “GER” (gastroesophageal reflux).

Several hours after returning home your chest pain worsens and your wife then calls 911.  You are taken to a different hospital where they quickly diagnosis a massive heart attack.  The delay in diagnosis has caused massive damage to your heart.  You are unable to return to work and you lose your job.  Over the next several months you are forced into a financial nightmare and are facing foreclosure and bankruptcy.

This is a true story and, in fact, with minor modifications, has occurred several times in the State of Florida.

Under the new proposed law

You would be able to file a lawsuit against the ER doctor and hospital who failed to consider the diagnosis of a heart attack, despite your classic presentation for this condition.  If you prevail, your recovery would be capped at $200,000.  Your attorney will recover the costs of litigation that he has advance and his fee.  Your health insurance provider is entitled to get their expenses back as they relate to the negligence.  You are left with the balance for your lost wages and future medical needs.

Your attorney could file a claims bill (petition to the State for more money) however the reality is these requests take years and are unlikely to be successful.

The current law

Under current law, you could file a lawsuit and, if you prevail, you would be able to claim your Economic Losses which may include lost wages (past and future), your medical expenses (past and future).  You can also claim Non-Economic Damages (pain and suffering) however current law caps that at $350,000.

ER doctors are already protected under a statute that sets a higher bar for the injured victim to prove.  The ER physician’s care must have been ‘reckless’ for the victim to recover and provides a $150,000 cap on punitive damages.

More Facts

Bill sponsor Senator Thrasher said in a recent interview:  “It’s all about the cost of healthcare to all of us, and protecting those guys and ladies who are on the front line of difficult situations.”

It’s not about the costs but about the profits.  Hospitals and ER physicians are not making enough profit in their eyes.  Reductions in payments for services are hitting and shifting their liability to the tax payers will improve their bottom lines.  Lobbyists for hospital are hammering the Senate to pass this bill.

The State of Florida has passed legislation to mandate treatment in ERs because emergency patients without insurance were being “dumped”.  Now the same ERs that were guilty of dumping sick patients want to have their liability for providing care removed.

Most Floridians will not be victims of malpractice in an ER.  Most Floridians however do pay taxes.  HB1474 makes you responsible for the costs of this legislation.  The State of Florida essentially becomes an insurance company for ER personnel.  The State will need to employee the staff to administrate this bill, to pay for the defense of the cases and to pay the settlements when they arise.

The costs of this has been estimated at between $25,000,000 and $85,000,000 per year to the taxpayers of the State.  So the liability of private, for-profit hospitals, doctors and staff is no longer their responsibility but now the tax payers of Florida.  And the money they save by shifting this liability goes into their pockets.

HB1474 has raised its head previous and failed.  The language has changed little but what has changed is the argument by the GOP as to why this bill should pass.  Even this session the bill was initially touted as a method to keep ER physicians from leaving Florida and to attract new ones by lowering liability costs.

The data did not support this argument so the sponsors are now attempting to argue that this bill (by removing the ‘fear’ of litigation) will allow ER physicians to practice ‘less defensive medicine’ thus saving money.  This convoluted thinking is invalid.  Defensive medicine is an old term and most well trained physicians do not believe the concept is valid.

ER providers proudly display their title, EMERGENCY …..  They knew when they made the decision to practice in an ER that they would be taking care of sick patients with serious illnesses.  They knew they would be asked to make difficult, time dependent decisions.  They knew there would be bad outcomes and they knew they would need to defend their care.  Now, instead of striving to practice care within appropriate standards, they want protection from when they error and injure a victim.

Summary

If ER providers practice within their standard of care, make clinical decisions using evidence based medicine, and document, they will be able to defend their care.  Bad outcomes will continue to occur despite appropriate care.  Defense of the standard of care should concern no one.  Legislating the liability of private, for-profit providers to the tax payers should concern everyone.

Timothy D. Brooks, MD

Michles & Booth, PA

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