Category Archives: National

Make this simple change to free up hospital beds now

SOURCE: The New York Times There is something we can do immediately that will dramatically help hospitals free up beds and medical equipment to help those suffering from covid-19. This proposal will save lives the minute that states and other authorities adopt it. We are in urgent need of emergency laws, or executive orders, in every state that temporarily relax the legal standard of medical malpractice. This is not an end-run to bring about tort reform. It is an emergency step, necessary in a national emergency, to save lives. Here’s why: Normally, when emergency physicians admit a patient who has a small but non-trivial chance of having a serious medical problem that further testing and observation may reveal, we do not hesitate to do so. Our rationale is twofold. First, the risk of the patient catching a hospital-acquired infection is lower than the benefit of detecting a more insidious medical problem. Second, the legal exposure is too high to do otherwise. Even if we are wrong only 1 out of every 100 or 1,000 times, the legal liability of one mistake can ruin careers and bankrupt medical practices. So, we admit. But coronavirus has changed that calculation. If a physician…

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Risks of Dusting Off the Scrubs

SOURCE: The National Law Review As the country ramps up to contain the rapid spread of COVID-19, the governors of New York and Colorado have called on former health care workers to support health systems stressed by the coronavirus. Doctors and nurses, for example, who currently work in another field or are retired with an active medical license, or one that can be reactivated, are encouraged to “dust off their scrubs.” Both governors recognize that many of the health care providers treating patients with the coronavirus have been forced to self-quarantine for at least two weeks after coming in contact with a confirmed coronavirus case, thus creating a shortage of doctors and nurses available to treat patients for any medical need. Governor Cuomo of New York suggested, but has not yet ordered, that former doctors and nurses “reconnect” with their past employers so that an “on call” reserve can be available. Professional Liability Concerns Such a request, which could soon become an official declaration, raises professional liability questions, such as would Good Samaritan laws shield these volunteers from liability? Or would the malpractice insurance of hospitals or nursing homes extend coverage to include these volunteer nurses and doctors? Under the…

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Stimulus Bill Would Boost Liability Protection for Volunteer Docs

SOURCE: Bloomburg Law The embattled Senate stimulus package, if approved, would remove a troubling legal barrier by providing limited liability protection for doctors and other caregivers who volunteer across state lines during the coronavirus emergency. The mammoth legislation (H.R. 748), tied up in negotiations with Senate Democrats and Republicans, includes a provision that would give volunteer health professionals the civil immunity they receive in their home states when providing care to Covid-19 patients in another state. Supporters say the “Good Samaritan” provision could spur more doctors, anesthesiologists, and other health professionals to assist overwhelmed providers in hard-hit states like California, New York, and Washington, where access to care is already a major concern. Improving liability protections during the pandemic is particularly important for physicians who use telehealth services to treat out-of-state patients and for those who live near state borders and may be needed for rapid response to a surge in patient volume across state lines, Patrice Harris, president of the American Medical Association, said. Across State Lines Federal and state laws offer some liability protection for health-care volunteers if they’re licensed in the state where they’re providing services. But those protections break down when volunteering across state lines, said…

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February 2020 Newsletter

The year ahead for patients and physicians Advocating for physicians in over 60 active lawsuits, the Litigation Center of the American Medical Association and State Medical Societies has a busy year ahead in support of access to care. Brian D. Vandenberg, senior vice president and general counsel at the American Medical Association (AMA), recently outlined the priorities for 2020 in an interview with American Medical News. On the docket for the AMA is the rise in hybrid medical liability lawsuits. Vandenberg explains, “Hybrid liability suits attempt to disregard medical malpractice liability caps by conflating distinct legal theories—an end-run around legislative tort reform.” Vandenberg highlights these attempts as “disingenuous” ways to overcome limits on noneconomic damages. “We’ll continue to advocate for meaningful tort reform, and will continue to challenge and file amicus briefs in abusive hybrid lawsuits.” He also emphasized the importance of protecting the patient-physician relationship and the continued ability for open and honest discussions about health care recommendations. When asked about what was at stake in several of their key legal priorities in 2020, Vandenberg answered, “Access and trust. It’s really that simple.” To read the full interview on how the Litigation Center is playing a role in support of ensuring…

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What legal challenges will affect patients and physicians in 2020?

SOURCE: American Medical Association The AMA and the Litigation Center of the American Medical Association and State Medical Societies are poised for another busy year of being the voice of America’s medical profession in state and federal courts. Through lawsuits, amicus briefs and other efforts, the AMA and the AMA Litigation Center pursue cases that are important to physicians and their patients. Brian D. Vandenberg, senior vice president and general counsel at the AMA, recently talked about what’s ahead in the legal arena this year. Tanya Albert Henry: As we head into 2020, what do you see as the biggest medicolegal trends that physicians should keep their eyes on? Brian Vandenberg: Physicians are increasingly burdened by third-party interference with the practice of medicine and patient care—by the government and by insurance companies. Government efforts to use physicians as mouthpieces to advance political agendas—under the guise of informed consent—will continue to be challenged in the courts as violations of physician-patient free speech. And, I believe, interference in the form of prior authorization, step therapy and coverage denial will face increasing legal scrutiny. I also expect that issues impacting access to care will trend in 2020. Henry: Are these a continuation of what…

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January 2020 Newsletter

Iowa mothers facing fewer options for labor and delivery A rising trend of Iowa maternity ward closures is having a domino effect on expectant mothers and access to prenatal care. With 12 maternity wards closing statewide between 2016 and 2018, the already rural state is leaving soon-to-be mothers with fewer options – further away. Once known as a state offering a reasonable medical liability climate, recent sky-high judgements have impacted the willingness of physicians and hospital systems to remain in practice. Between 2017 and 2019, Iowa juries awarded plaintiffs more than $63 million in non-economic damages, adding up to nearly three times the $21.4 million awarded in economic damages. Now, half of Iowa’s counties lack any maternity services at all. “This situation drives up health care costs for all Iowans as malpractice insurance premiums rise, while putting patients, doctors and hospitals at risk,” writes Dr. Marygrace Elson, an OBGYN practicing in Iowa City and president of the Iowa Medical Society, in a recent op-ed. Ranking last across all states in the number of OBGYNs per 10,000 women, medical liability reform is a must, Elson emphasizes. To read more about the need for the Iowa legislature to take action on liability…

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High court ruling must avoid encouraging involuntary commitment

SOURCE: American Medical Association Giving mental health patients access to outpatient care and reserving involuntary commitments for situations that warrant them is crucial to patient safety because studies show that involuntarily commitments result in patients refusing help for fear their civil rights will be taken away. State laws over decades have evolved to support physicians in striking that balance. Now a plaintiff is asking Pennsylvania’s highest court to interpret a commonwealth law in a way that would ultimately force physicians who feared being sued to err on the side of providing involuntarily treatments for patients to whom they otherwise would have provided voluntarily outpatient care. The Litigation Center of the American Medical Association and State Medical Societies in December joined the Pennsylvania Medical Society and the Pennsylvania Psychiatric Society in filing an amicus brief in the matter. The brief asks the Supreme Court of Pennsylvania to uphold an appellate court decision that does not open physicians up to a new liability when they are making treatment decisions involving mental health patients. “Overall, studies have shown that 77% of previously admitted patients will not risk being institutionalized again, even if they know they pose a danger to themselves or others. Creating…

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Two-thirds of cardiologists have been named in a malpractice suit

SOURCE: The Gazette Most cardiologists have been implicated in a malpractice lawsuit, according to Medscape’s annual Cardiologist Malpractice Report, and in many cases the litigation causes them to stop trusting their patients. For this year’s Malpractice Report, Medscape asked more than 4,300 physicians in over 25 specialties whether they’d been sued, why they were sued, what happened and how that experience affected the way they practice medicine. Nearly two-thirds of cardiologists said they’d been named in at least one malpractice lawsuit—18% of whom said they were the only person named in the suit. Just 35% said they’d never been implicated. Wrongful death and complications from treatment or surgery were tied as the number-one reason for malpractice suits, according to the report, accounting for 34% each of the total pool. Other common reasons were failure to diagnose or delayed diagnosis (27%), poor outcome or disease progression (25%) and failure to treat or delayed treatment (23%); abnormal injuries, poor documentation and errors in medication administration prompted legal action more rarely. “There’s a whole host of what you could call psychological factors that can contribute to the filing of a claim,” David S. Szabo, Esq., a malpractice lawyer with Locke Lord, LLP, in…

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December 2019 Newsletter

Personal injury attorneys target definition of a patient With courts increasingly reviewing physician liability for patients they have never treated, the answer to what defines a patient could shape the future of access to care. The issue stems from a recent case in which a Minnesota physician was held liable for harm to a patient he had never examined, reviewed her records or spoke to directly. Under review was whether or not the physician still had a “legal duty of care” following a conversation with a Nurse Practitioner, in which he recommended that the patient not be admitted to the hospital-based on a series of symptoms. The AMA’s Litigation Center, in an amicus brief, argued that the duty of care was premised on a patient-physician relationship, which was not present in this case. While lower courts agreed, highlighting the importance of informal consultations among health care professionals, the Minnesota State Supreme Court overruled these verdicts. A moot court review of the case at the 2019 AMA Interim Meeting saw audience members raise concerns about a number of issues arising from the decision, including “the chilling effect of the decision, decision-making authority of NPs and physician assistants, legal ethics and medical…

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Hospitals Need to Brace for Upward Trend in Malpractice Claims

SOURCE: Healthleaders There has been a dramatic upward trend in hospital medical malpractice claims over the past two decades, according to a new report from Aon and Beazley Group. Over the past two decades, the medical professional liability insurance marketplace has been hardening in response to higher paid claims. The evolving market is putting upward pressure on premiums and downward pressure on insurance industry capacity. Average paid claims in 2018 were 50% higher than in 2009, Valentina Minetti, U.S. hospitals focus group leader at Beazley, said in a prepared statement. “The average paid claim with indemnity closing in 2018 was 6% higher than in 2017. While that is only a single-digit increase from year to year, the cumulative effect of similar rises has taken the average paid claim from $400,000 in 2009 to almost $600,000 last year.” Multimillion-dollar paid claims are taking a toll on insurers and healthcare organizations alike, she said. “The double-digit million-dollar claims are having a chilling effect on the medical liability community. Awards of this size drive hospitals to increase their self-insurance, can cause premiums to rise and industry capacity to decrease, so there is certainly a shared interest in seeing these rising costs stabilize.” Multimillion-dollar…

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