Texas plaintiffs gear up for a fight against liability laws
A challenge in federal court is the first step that medical liability lawsuit plaintiffs have taken to overturn long-standing and successful reforms for Texas patients.
More than a dozen plaintiffs are seeking class-action status in support of a declaratory judgment that the reasonable limit of $250,000 on non-economic damages is unconstitutional. The group is preparing for what could be a years-long battle that could reach the highest court in the U.S.
The lead attorney in the case is attempting to stretch the interpretation of the Seventh Amendment’s right to a jury trial with the due process clause of the Fourteenth Amendment. Health care providers are prepared to support the fact that the courts have selectively applied the incorporation of certain constitutional rights to the states and have stopped short of incorporating the Seventh Amendment.
Undoing the reforms that brought urgently needed health care resources to the state would harm patient access to care.
“The legislature and the voters understood the need for limits on non-economic damages to resolve serious deficiencies in the ability for patients to access basic and necessary care,” said Yvonne Puig, an attorney for the Texas Hospital Association.
“The Texas Hospital Association is confident these statutory limitations on non-economic damages, enacted to resolve a healthcare crisis in Texas nearly 20 years ago, do not violate the U.S. Constitution.”
To read more about what is sure to be a protracted battle between health care providers and personal injury attorneys, click here (subscription required).
Broken system: Liability risks for orthopaedic surgeons
A recent Medscape report highlighted the risks that orthopaedic surgeons face every day — dealing with not just broken bones but a broken liability system.
The report detailed five updated statistics that all orthopaedic surgeons should know about their practice environment.
Eighty-one percent of orthopaedic surgeons surveyed by Medscape had been named in a liability lawsuit, and a third were able to settle. Only two percent reported that their cases went to trial and were decided in favor of the plaintiff.
And yet — 35 percent of respondents who were sued said they spent more than 40 hours preparing for their defense — with the entire legal process running between one to two years for 40 percent of respondents.
Most commonly, orthopaedic surgeons were the targets of liability lawsuits based on allegations of delay in diagnosis.
To read more about key liability takeaways for orthopaedic surgeons, including the full report, click here.
Side effects of COVID-19 to linger through liability lawsuits
As another pandemic year passes, health care providers look to the promise of booster shots to keep severe cases at bay as liability concerns weigh heavy on their practice.
An article in Physicians Weekly highlights that lawsuits to date have centered around missed COVID-19 diagnoses, delayed treatment or testing, insufficient infectious-disease protocol and protective equipment, and failure to identify conflicts between COVID-19 vaccines and current health situations.
This is likely just the start of what lies ahead for health care providers.
Peter Kolbert, senior vice president and chief claims officer at The Doctors Company’s unit Healthcare Risk Advisors, sees an increase in COVID-19 liability lawsuits in the years to come, “attributing the rise in claims to the public’s eventual numbness to and dismissal of the immense pressures posed to frontline healthcare workers during the pandemic.”
Driving liability lawsuits during COVID-19 has been the change in patient and physician communications necessitated by infection control protocols, leaving patients and families feeling as though they haven’t received the level of care that they need.
Without comprehensive COVID-19 liability at the federal level, it is up to individual physicians to manage the risks of practicing during a pandemic.
Mike Stinson, vice president of government relations and public policy at the MPL Association and chair of the HCLA, commented on physicians’ exposure to liability lawsuits, given that state protections may not transfer to the federal courts, as there is currently no national liability standard.
Central to health care providers’ strategy should be the documentation of COVID-19 related events within their practice and immediate community, should a lawsuit arise.
To read more about the risks health care providers are likely to face as the side effects of the pandemic linger, click here.