Legislation to raise the bar of proof of medical malpractice by emergency room physicians was on life support a couple of weeks ago, but survived opposition and has gone to the governor.
The bill, H2315, which passed the Senate 17-11 on April 24 and the House 37-20 on April 26, heightens to “clear and convincing evidence” from the current “preponderance of evidence” the burden of proof of malpractice by ER physicians, other emergency personnel and hospitals. It follows a series of other tort reform measures approved by the Legislature in recent sessions to deal with a medical malpractice situation that health and insurance officials say is discouraging physicians from practicing in Arizona and forcing others to leave the state or retire.
“It was rather a decisive vote,” said Dr. Todd Taylor, a semi-retired emergency physician who represents the American College of Emergency Physicians. “It indicates the seriousness of the issue and it has to be dealt with.”
He testified earlier this year on a similar Senate bill that the reform measure was needed because emergency personnel often do not know or cannot obtain a patient’s medical history at a time when split-second decisions have to be made to treat them.
Proponents of the legislation say it does not prevent patients from suing emergency personnel, but trial lawyers counter that the bill is a step too big and a violation of equal protection, therefore unconstitutional.
“This applies to everybody who starts in the emergency room, throughout the hospital stay and everyone who touches them,” JoJene Mills, former president of the Arizona Trial Lawyers Association, told the Senate Health Committee. “It’s a public policy train wreck. This is not going to make a difference for the people on the front lines.”
Goes to governor
Health Committee Chairman Sen. Carolyn Allen, R-8, sponsored the original ER bill, but it was watered down in the House and headed for a conference committee. In the meantime, the Senate Finance Committee approved a strike-everything amendment to H2315 with the language in Ms. Allen’s bill, and it prevailed. Now, the final decision is up to the governor. ”We’re going to try to meet with her if she’ll talk with us about it,” Dr. Taylor said.
Other states without constitutional prohibitions against limiting personal damages have been much more aggressive in mitigating medical liability, he said.
“That’s what we’re competing against,” Dr. Taylor said. For example, Georgia has a law requiring clear and convincing evidence of gross negligence, which is stricter than what’s proposed in the Arizona bill.
“You basically have to cut off the wrong leg to do it [commit malpractice],” he said.
Dr. Taylor said he’s been receiving recruitment materials from other states, ads that list “tort reform states” as an inducement to practice there.
“What we’re producing isn’t even keeping up with attrition of the people that are retiring, quitting or leaving the state,” he said. “There will be hospitals that won’t even be able to open because there aren’t enough emergency room physicians to staff the emergency departments.
“We’ll have to see as time goes along if this [bill] will be effective,” Dr. Taylor said.
Where Arizona ranks
The American College of Emergency Physicians in January issued an “Emergency Care Report Card,” which ranked Arizona eighth from the bottom among the 50 states in four areas of emergency care affected by state policies, and nearly flunked the state for its medical liability environment, all based on 2002 data. The report did not evaluate the quality of emergency care.
“The threat of a lawsuit does not make for better emergency care, and it is this unmitigated threat that is making for a dysfunctional, inadequate and approaching a downright dangerous situation in our Arizona emergency departments,” Dr. Taylor said at the time.
Ms. Mills has argued that emergency room overcrowding, lack of reimbursement and medical mistakes — not lawsuits — are at the heart of emergency room and general health care crises. Past and current malpractice legislation, she said, has not addressed reducing medical mistakes.
“It’s really about lessening the remedy for the injured,” Ms. Mills told the Senate Health Committee in March, adding that the bill heightens the burden of proof to the same level as “beyond a reasonable doubt” in criminal cases, and makes a malpractice claim in emergency cases hard to win.
Effects of legislation
Recently enacted medical liability laws might have played a role in dividends paid to Arizona physicians last year, an insurance executive said earlier this year. For the first time in three years, the Mutual Insurance Company of Arizona (MICA), a physician-owned company that insures a majority of Arizona doctors, paid dividends totaling $8 million, said Dr. James Carland, MICA’s chief executive. He said new state laws dealing with medical liability and malpractice have been in effect for only a short time, but it’s possible that one, at least, helped the insurance company gain increased cash reserves, which resulted in the dividends.
“At this point, it’s pure speculation, but there is some basis for the speculation,” Dr. Carland said. “There’s no evidence that it’s not due at least to the affidavit of merit [legislation]. We’re certainly hopeful that’s a good part of it.”
In 2004, Sen. Barbara Leff, R-11, sponsored S1113, which added health care related lawsuits to the class of litigation that requires an expert to decide whether a case has merit and should proceed. The intent of the bill is to reduce the number of frivolous malpractice claims.
The Arizona Medical Association decided earlier this year to forgo a campaign to place a medical liability reform initiative on the November general election ballot. The initiative might have proposed an amendment to the state Constitution to cap non-economic damages awarded for personal injury or death.