HCLA Pushes Congress to Prepare for Future Pandemics
The Health Coalition on Liability and Access recently proposed additions to the pending reauthorization of the Pandemic and All-Hazards Preparedness Act (PAHPA), ensuring that Good Samaritans and healthcare volunteers are protected during future public health emergencies and federally declared disasters.
In a letter addressed to Representatives Richard Hudson (R-NC) and Anna Eshoo (D-CA) of the House Energy and Commerce Committee, the HCLA strongly recommended including the Good Samaritan Health Professionals Act in PAHPA to ensure that health professionals are not deterred from volunteering in times of crises due to the threat of meritless medical liability lawsuits.
The letter noted, “In the early days of the COVID-19 pandemic, Congress wisely took steps to address this issue by including in the Coronavirus Aid, Relief, and Economic Security (CARES) Act a provision granting volunteer health professionals treating patients with, or suspected of having, COVID-19, protection from liability lawsuits.”
But a permanent and long-term fix is required to fill in the “gaps that could expose volunteer health professionals to unwarranted liability lawsuits,” the letter stated.
Language in the Good Samaritan bill specifically enables qualified volunteers to assist when disaster strikes while respecting existing medical liability laws. The protections in the bill will only apply to licensed health care providers and will not apply to a health care provider if the harm caused was criminal or deliberate.
The letter expresses how important it is to have an adequate supply of trained health care professionals ready, willing and able to volunteer their services during a catastrophe.
“Addressing this issue now, before the next emergency occurs, will alleviate the conscious and unconscious hesitation many health professionals feel when called upon to provide services outside their typical professional responsibilities, resulting in more needed health care volunteers being available when that time comes,” it emphasizes.
To read the HCLA letter in full, click here.
Initial Diagnosis Shows Harm in Pennsylvania Venue Shopping Rule
Pennsylvania’s new venue shopping rule injects additional risks of medical lawsuit abuse into the state’s liability climate. Early data highlights how recent lawsuits are attempting to take advantage of plaintiff-friendly jurisdictions like Philadelphia.
For the first time in 20 years, liability lawsuits can be filed in counties other than the one where the injury took place — and Philadelphia has emerged as the location of choice.
As a result of the change in rules, a surge of cases have been filed in Philadelphia — many of which have nothing to do with the metropolitan area. It is now not unusual for cases filed in Philadelphia to have the alleged injuries occur elsewhere, and the plaintiffs reside nowhere near Philadelphia.
The number of medical liability cases filed in Philadelphia’s Court of Common Pleas almost tripled in January and February after the rule change took effect, compared to the same period last year.
That’s because Philadelphia remains a plaintiff-friendly jurisdiction, deciding medical liability cases in favor of plaintiffs three times more often than those in the nearby suburban Montgomery County.
Across cases filed year to date, nearly 25 percent involve only defendants with addresses outside of the city, making it unlikely they would have been filed in Philadelphia prior to the venue rule change.
Cases that started in health systems in far-flung suburbs of West Reading, Bensalem, and Langhorne are among those filed so far this year in Philadelphia’s common pleas civil court.
“Allowing personal injury lawyers to move claims from all over the state to venues with histories of high payouts — particularly Philadelphia — puts all Pennsylvanians’ health care at risk,” said Liam Migdail, a spokesperson for the Hospital and Healthsystem Association of Pennsylvania.
To read more about the risks this venue shopping rule poses for medical lawsuit abuse and the cost of such abuse on the health care system, click here.
Supreme Court Abortion Ruling Leaves Open-Ended Questions for Practitioners
The Dobbs v. Jackson Women’s Health Organization Supreme Court ruling regarding abortion can potentially harm both patients and physicians, as it leaves the issue up to states to decide and therefore creates a more complicated and uncertain practice environment.
While many states have taken action to codify their stance since the ruling, less clear is the protection providers have in cases of emergency where the life of the mother is in jeopardy. According to the Emergency Medical Treatment and Labor Act (EMTALA), hospitals must screen patients experiencing an emergency medical condition — including pregnant mothers — and cannot refuse to provide medical care unless patients are deemed stable.
However, it is possible that an emergency room physician, who is not accustomed to performing abortions, may be at risk of a medical liability lawsuit in states where the procedure is banned — even if it is done to save the life of the mother. This uncertainty was the focus of a recent panel discussion featuring attorneys, insurance professionals, and hospital administrators.
Guidance issued by the U.S. Department of Health and Human Services has provided some assurance to health care providers in emergency settings that they can put a mother’s life first, but EMTALA “is a defense, not an immunity,” said Lori Semlies, New York-based attorney at law, Wilson Elser Moskowitz Edelman & Dicker LLP.
The federal Dobbs decision and resulting state actions raise questions around both medical liability and the potential for such emergency treatment to be identified as criminal in nature, said Lainie Dornecker, Miami-based head of health care at Bowhead Specialty Underwriters, Inc.
“These doctors can be subject to scenarios where they may be subject to jail time,” she said.
During a panel session last month at the World Captive Forum, sponsored by Business Insurance, the message to organizations and their practitioners was to continue to “use their medical decision-making process” and keep robust documentation.
To read more about how the federal Dobbs decision and follow-on state actions have resulted in uncertainty for emergency medical professionals, click here.