Health Care Reform: Should It Grant Physicians Immunity for EMTALA-Mandated Services?
Health Care Reform: Should It Grant Physicians Immunity for EMTALA-Mandated Services?
By Robert A. Bitterman, MD, JD, FACEP, and Michelle Bitterman Fish, JD
The federal government, through the Emergency Medical Treatment and Active Labor Act (EMTALA), as well as some states such as California and Florida, mandates hospitals and physicians to provide medical services to anyone presenting to the hospital's emergency department (ED). Why shouldn't governmental liability protections, such as immunity and/or damage limitations, apply to providers of emergency services?
Two of the stated goals of the congressional and administration's health care reform agendas are access to health care, particularly for the uninsured, and lower health care costs. Yet glaringly absent is consideration, let alone a plan, for medical liability reform, which has a proven track record of improving access and lowering costs.
Texas Tort Reform
Texas's story is the perfect example. In 2003, its health care situation was bleak. Every year, 25% of the state's physicians were sued at least once.1,2 Malpractice premiums were increasing 25% to 50% per year-if insurance coverage was available, since all but four of the nearly 40 prior liability carriers had abandoned the state.2 Doctors were discontinuing services perceived to be high-risk, or leaving the state altogether. Texas ranked 48th out of 50 states in the number of physicians per capita.2 Sixty percent of the counties in Texas had no obstetrician, and more than half didn't have a pediatrician. There were not enough neurosurgeons in San Antonio to place even one neurosurgeon on call for the city 24 hours a day year-round, and south of Corpus Christi, there were no neurosurgeons at all.1,2
Fed up with the status quo, the Texas Legislature passed a series of tort reform packages, culminating in 2003 with a law that limited a plaintiff's non-economic damages to $250,000 from doctors, and an additional $250,000 from each of up to two health care facilities.3,4 The Texas reform limited non-economic damages similar to California's successful tort law and did not cap compensatory economic awards whatsoever.3
Furthermore, the legislature recognized the unique role and circumstances of its EDs by imposing a higher burden of proof to sue emergency physicians, on-call physicians, and hospitals providing emergency care - "willful and wanton neglect" instead of ordinary negligence.3 It sought to encourage people to work in emergency care and understood the exigencies of making critical decisions in the ED, often without adequate medical histories.
It required a constitutional amendment to give the Legislature the authority to cap non-economic damages and affirm the enacted medical liability reforms.5 The amendment, known as Proposition 12, was a source of a contentious debate between the plaintiffs' bar and groups who believed the changes would increase access to health care. The voters of Texas approved the amendment by a substantial margin.1,2
The turnaround in Texas's health care climate has been nothing less than profound.
The number of lawsuits dropped dramatically-nearly 50% within two years in the San Antonio, Fort Worth, Dallas, and Houston areas. The state's largest medical liability carrier, Texas Medical Liability Trust, also reported a 50% reduction in lawsuit filings.2 As a consequence, every major medical malpractice insurer in Texas cut their rates by double-digits. Texas physicians currently pay premiums 25% lower than they did before the passage of tort reform, according to the Texas Medical Association and state insurance department data.1,6,7 There are also more than 30 new insurers in the state, competing with the lone foursome that existed in 2003.1
Since 2003, Texas has licensed more than 14,500 new doctors, with each year setting a new record for the number of license applications filed.1,8 In fact, at one point the Texas Board of Medical Examiners was so overwhelmed with new physician applications that it requested and was granted a special appropriation from the legislature to hire more personnel.9 The state experienced nearly a 10% increase in the influx of specialists such as OB/GYNs, neurosurgeons, and orthopedic surgeons between May 2003 and May 2008, often in rural, previously underserved areas markedly improving access to care. Many areas where patients had no access to care now enjoy fully staffed facilities.1,6,8
The medical liability reforms, particularly the limitation on non-economic damages, are credited with creating more than 223,000 new jobs in Texas.10 It is also believed that the enactment of tort reform of 2003 kept open approximately 30,000 nursing home beds in Texas, which provide continuing services to the elderly.1,2
The Texas experience impressively illustrates the advantageous effects of medical liability reform measures. Texas improved access and lowered costs through a combination of procedural reforms, changes in the standards of liability and burden of proof, and caps on non-economic damages.3
Other states have taken notice. Arizona, for example, revised its laws this year to elevate the burden of proof required to recover damages from malpractice to a "clear and convincing" standard (instead of the usual "preponderance of the evidence standard") for any health professional, including emergency physicians and on-call physicians, or hospital acting in compliance with EMTALA.11
Georgia limited emergency-room-based malpractice claims in three ways. First, the level of culpability necessary for liability was increased from negligence to gross negligence. Second, the plaintiff's burden of proof was also increased to the clear and convincing evidence standard. Third, the statute requires the judge to provide certain beneficial jury instructions in ED cases.12 Georgia's new rules, though, are less comprehensive in the sense that they are not triggered unless the patient has a real emergency condition. Thus, they would not apply to all patients who receive medical care in the emergency room.13
In Ohio, a bill was recently introduced that would grant qualified immunity to any physician who provides emergency medical services in compliance with EMTALA if the physician's act or omission does not constitute "willful or wanton misconduct."14 Interestingly, the Ohio bill does not appear to protect midlevel providers acting in compliance with EMTALA,15 since the language of the bill protects a physician who provides emergency services.16
Though it gets much less attention than the non-economic damages cap, Texas also modified its sovereign immunity law to further protect ED and on-call physicians providing emergency services. Physicians will be considered "public servants" when working for state and county hospitals, and their liability limited to a maximum of $100,000 with the governmental entity responsible for any excess award. A public servant includes "a licensed physician who provides emergency or post-emergency stabilization services to patients in a hospital owned or operated by a unit of local government."17
Sovereign immunity is one reform proposal infrequently considered, but it has enormous potential to help fund health care reform.
What Is Sovereign Immunity?
Sovereign immunity is defined as "a government's immunity from being sued in its own courts without its consent."18 Its origin can be traced back to early England, based upon the notion that "the King can do no wrong."19 The concept is grounded in the belief that public policy considerations dictate that a group of persons "require special protection for the person, activity or entity in question"-ostensibly for the greater benefit of society, even if somewhat at the expense of an injured party.20
A classic example of federal sovereign immunity is the recent case of Hoffman v. United States, decided by a federal district court in Virginia.21
A pregnant Ms. Hoffman presented with abdominal pain to the ED of Naval Medical Center in Portsmouth, VA, where she was triaged and moved to the labor and delivery unit for evaluation. She was released (plaintiffs argue prematurely), and several hours later delivered her baby at the Chesapeake General Hospital. The baby died from necrotizing entercolitis a month later. Ms. Hoffman sued the Naval Medical Center for medical malpractice and also brought an EMTALA claim alleging failure to screen and stabilize her before discharge.
The defendant in the case was the United States, because the Naval Medical Center was owned and operated by the federal government. However, the United States filed a motion for summary judgment claiming it could not be sued under EMTALA on account of its sovereign immunity, which it did not waive when it enacted EMTALA.21
According to U.S. Supreme Court precedent, "a waiver of sovereign immunity must be 'unequivocally expressed' in the statutory text."22 The court found no such "expressed waiver" in EMTALA's statutory language.21 Furthermore, nowhere in the civil enforcement section of EMTALA (or anywhere else in the statute) does it mention the United States government or any hospital owned by the government. Therefore, the court held that the US Naval hospital could not be sued under EMTALA. (The plaintiffs still had a remedy under the Federal Torts Claims Act for the hospital's alleged negligence.)
The courts have consistently held that government-run hospitals can not be liable to private plaintiffs for violations of EMTALA.23 Thus, while the government passed EMTALA to ensure access to emergency care, it exempted itself from compliance and liability under the law to avoid draining the public purse.
The Case of Martinez v. Maruszczak 24
The states also have sovereign immunity. The Eleventh Amendment to the U.S. Constitution grants sovereign immunity to the states, such that the states are not subject to liability under federal laws unless they expressly waive their immunity.25,26 The Nevada Supreme Court's recent opinion in Martinez v. Maruszczak illustrates the benefits the doctrine of sovereign immunity can bring to health care reform.24
This malpractice case arose out of a death from accidental injuries Mr. Maruszczak sustained while being treated by Dr. Martinez at the University Medical Center in Las Vegas, NV. One issue before the court was whether Dr. Martinez was protected by Nevada's sovereign immunity statute from liability relating to his treatment of Mr. Maruszczak.24 Nevada caps the liability for tort claims at $50,000 per claim, if the physician is a "public employee" of the state.27,28
Dr. Martinez worked for the University of Nevada School of Medicine and was acting within the scope of his employment during the alleged act of medical malpractice, so the court deemed him a "public employee" and therefore ostensibly protected by the statute's $50,000 damage limitation.24
The court then dismissed the plaintiff's claim that the sovereign immunity damages cap violated the due process and equal protection guarantees under the Nevada and United States Constitutions.29-31 It held that the plaintiffs argument failed to differentiate between the right to recover and the amount of recovery, and that the recovery amount is always uncertain and subject to remarkable variations among claimants.24
Moreover, the court enunciated the public policy behind Nevada's statutory qualified immunity.24 First, protecting the state treasury was a legitimate state interest, thus providing a rational basis for capping damages at $50,000 for allegedly negligent acts committed within the scope of state employment. Second, capped damages also advanced a legitimate state interest in encouraging qualified professionals to accept state employment to serve the people of Nevada.24,32 The court noted that operation of a public hospital is a core government function designed to ensure broad availability of access to medical care. It also recognized "the fact that state-employed physicians may treat private paying patients does not undermine the need for public hospitals to generate income to offset the costs of providing large-scale indigent medical care."24
It rejected the notion that state-employed physicians with capped liability wouldn't be incentivized to exercise appropriate care in the treatment of their patients, particularly since incidents of malpractice affect employability, costs of insurance premiums, and subject physicians to national data bank reporting.24
Conclusion
Why shouldn't governmental liability protections, such as immunity and/or damage limitations, apply to providers of EMTALA mandated emergency services? Isn't emergency care an essential community service, exactly like police and fire protection? Don't we need neurosurgeons on call to put out "fires" in an emergency? Don't public policy considerations dictate that safety-net providers-such as hospital EDs, emergency physicians, trauma physicians, on-call physicians, and EMS systems-that care for patients on an emergency basis under government mandates "require special protection for the greater benefit of society"?
The cost of litigation is borne by all Americans in some capacity, either through increased health care premiums, drug prices, vaccine costs, increased deductibles, increased co-pays, lower wages, or loss of health insurance coverage. It extracts precious dollars out of the health care system that would otherwise be available to actually provide health care services. In a country utterly desperate for money to fund its health care initiatives how can we not enact medical liability reform on a national level?
The states have recognized and are living proof that medical liability reform improves access to care and lowers the overall cost of health care.33 States with effective tort reforms also have on average 12% more physicians per capita than states without such reforms.34
The issue needs to be recast from "hospitals and physicians vs. plaintiff attorneys and potential large damage awards" into what's in the best interest of society as a whole. From a public policy perspective, control of litigation costs, such as through non-economic damage caps or sovereign immunity, benefits society by assuring access to available emergency services at reasonable prices.
The federal government (or alternatively the states) should designate safety net providers as "public servants" for purposes of liability when providing services under EMTALA or state EMTALA-like laws, and grant them sovereign immunity, at least to some degree.
Congress, indeed, must act. Access to health care is a public policy issue that requires a political solution. Access to health care, accountability of health care providers, and appropriate utilization of limited resources are immense issues for our society, subject to and solvable only on a political level. But the solutions should be driven by public policy; i.e., what is in the best interests of the health and well-being of our patients and the interests of the country, as opposed to the interests of a single individual (aggrieved plaintiff) or particular special interest group (e.g., doctors, lawyers, insurers, hospitals, legislators).
One question our representatives conspicuously did not ask the folks at those contentious town hall meetings was which they would prefer-access to health care or potential mega-jury awards for malpractice injuries? The answer would have been an overwhelming and resounding request for access to available, affordable, quality health care.
References
1. Nixon J. Proposition 12 A Winner Five Years Later, Ft. Worth Star-Telegram, Oct. 1, 2008, at B13, at 2008 WLNR 18611623.
2. Nixon JM. A History of Lawsuit Reform in Texas. May 2008. Published by the Texas Public Policy Foundation, Center for Economic Freedom. Available at http://www.texaspolicy.com/pdf/2008-05-RR04-tortreform-jnixon-posting.pdf.
3. Tex. Civ. Prac. & Rem. § 74.301.
4. Tooher NL. Cap on Non-economic Damages Crimps Texas Medical Malpractice Lawsuits, Lawyers USA, 25 Sept. 2006.
5. The Texas Supreme Court had overturned a $500,000 cap on non-economic damages previously passed by the legislature in Rose v. Doctors Hospital, 801 S.W. 2d 841 (Tex. 1990).]
6. Sorrell AL. Texas Liability Reforms Spur Plunge in Premiums and Lawsuits, Texans for Lawsuit Reform, Sept. 8, 2008, at http://www.tortreform.com/node/473/print.
7. Professional Liability Insurance Reform, Texas Medical Association, 12 May 2008.
8. Doctors Laud 5 Years of Malpractice Relief, Texans for Lawsuit Reform, Sept. 14, 2008, at http://www.tortreform.com/node/475/print.
9. Kilpatrick KK. A Tale of Two States, April 29, 2008- AdvanceWeb.com.
10. A Texas Turnaround-The Impact of Lawsuit Reform on Economic Activity in the Lone Star State. The Perryman Group, Apr. 2008, at 27, at http://www.tlrfoundation.com/perryman-group-report.
11. Arizona Revised Statutes (2009), Title 12, Chapter 5.1, Article 1, Section 12-572.
12. O.C.G.A. 51-1-29.5. Subsection (d) provides the court "shall instruct the jury to consider whether or not the health care provider had a full medical history of the patient, whether or not there was a preexisting doctor patient relationship, the circumstances constituting the emergency, and the circumstances surrounding the delivery of emergency medical care."
13. O.C.G.A. 51-1-29.5(a)(5).
14. Ohio S. B. No. 86, introduced by Senator Buehrer, 128th General Assembly, 2009-2010.
15. Ohio Rev. Code § 4731.052(A)(3).
16. Ohio S. B. No. 86, introduced by Senator Buehrer, 128th General Assembly, 2009-2010.
17. Texas Civ. Pract. & Remedies Code, Chapters 101, 108. (Chapter 104 actually indemnifies these physicians up to $100,000.)
18. Black's Law Dictionary, 765 (8th ed. 2004).
19. 1765 W. Blackstone Commentaries on Laws of England.
20. Black's Law Dictionary, 765 (8th ed. 2004) (quoting Edward J. Kionka, Torts in a Nutshell 341 [2d ed. 1992]).
21. Hoffman v. United States, No. 2:08cv376 (E.D.Va. January 7, 2009).
22. Hoffman v. United States, No. 2:08cv376 (E.D.Va. January 7, 2009) (quoting United States v. Nordic Village, Inc., 503 U.S. 30, 33 [1992].)
23. Eg. Williams v. United States, 242 F.3d 169 (4th Cir. Mar. 2, 2001).
24. Martinez v. Maruszczak, 168 P.3d 720 (Nev. 2007).
25. U.S. Constitution, amendment XI.
26. Johnson v. Virginia, No. 3:06cv00061 (W.D. Va. May 24, 2007).
27. Nev. Rev. Stat. § 41.035(1).
28. Nev. Rev. Stat. § 41.032(2).
29. Nev. Const, art. 1, § 8(5)
30. Nev. Const. art. 4, § 21
31. U.S. Constitution, amendment XIV.
32. Arnesano v. Nev. Dep't of Transportation, 478 P.2d 139, (Nev. 1997).
33. E.g., GAO-03-0836 August 2003. Medical Malpractice: Implications of Rising Premiums on Access to Health Care; HHS Report. Addressing the New Health Care Crisis: Reforming the Medical Litigation System to Improve the Quality of Health Care. March 3, 2003; Kane CK, Emmons DW. American Medical Association Policy Research Perspectives: "The Impact of Liability Pressure and Caps on Damages on the Healthcare Market: An Update of Recent Literature." 2007 (www.ama-assn.org/ama1/pub/upload/mm/363/prp2007-1.pdf).
34. DHHS Agency for Healthcare Research and Quality (AHRQ), Hellinger FJ and Encinosa WE. "The Impact of State Laws Limiting Malpractice Awards on the Geographic Distribution of Physicians."
The federal government, through the Emergency Medical Treatment and Active Labor Act (EMTALA), as well as some states such as California and Florida, mandates hospitals and physicians to provide medical services to anyone presenting to the hospital's emergency department (ED). Why shouldn't governmental liability protections, such as immunity and/or damage limitations, apply to providers of emergency services?Subscribe Now for Access
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