Some Plaintiffs Face Higher Burden of Proof
Is this long overdue, or is it unfair to injured patients?
More than a decade ago, Texas, South Carolina, and Georgia enacted tort reform that changed the malpractice standard for emergency care. To prevail in malpractice litigation in Texas, plaintiffs must demonstrate that the EP acted “with willful and wanton negligence, deviated from the degree of care and skill that is reasonably expected of an ordinarily prudent physician or healthcare provider in the same or similar circumstances.”1
Simply put, plaintiffs must prove EPs acted with gross negligence rather than simple negligence. How has this higher burden of proof affected ED malpractice litigation? For one thing, there is no longer much of it.
“We do not see a lot of emergency care cases, since there is a higher standard of proof,” says Vicky Gould, vice president of claims in the Austin, TX, office of ProAssurance Companies.
Appellate courts are considering several issues regarding the construction of the statute and situations in which they apply. “We are hopeful that the current tort reform in Texas will continue to withstand challenges through our courts,” Gould says.
Tort reform hasn’t put a stop to all ED malpractice lawsuits. “We are finding that plaintiff’s experts are increasingly willing to testify that emergency physicians were grossly negligent [so as] to meet the heightened burden of proof,” Gould notes. However, this alone isn’t enough for an injured plaintiff to prevail.
Attitudes about tort reform vary widely among EPs, defense attorneys, and plaintiff attorneys. ED Legal Letter spoke with two Texas physicians on how tort reform, in their view, has affected the practice of emergency medicine and malpractice litigation there.
Relationship Less ‘Adversarial’
Arlo F. Weltge, MD, MPH, FACEP, clinical professor of emergency medicine at McGovern School of Medicine at the University of Texas at Houston:
The liability climate has improved dramatically. It has been a huge boon to emergency medicine.
“Willful and wanton” has restored competition with (and availability of) medical malpractice liability. The out-of-control litigation that was going on led to all but three liability carriers leaving the state. We now have insurance companies coming back to the state. They are willing to write policies, and the cost of the policies of the companies that did remain have dropped substantially. The tort climate was very out of control before the law passed in 2003. EPs were getting hammered for all sorts of peripheral issues that we had been involved in at some point. That has dropped off dramatically with the gross negligence standard. But we are starting to see the pendulum swinging back, where there are challenges to what constitutes a freestanding ED, and what constitutes emergency care.
Tort reform is not something that gets floated easily without some precipitating event or crisis in the state. Before the law passed, we had entire specialties leaving regions of the state uncovered. It was the rural part of the state that recognized that this law was needed to provide access to care. That’s the way it was sold to the citizens of Texas. Whole areas of the state were losing access to medical care. Texas saw a dramatic increase in EPs coming to the state, recognizing that these protections provide a much nicer practice environment. The allegation from some is that there will be no controls on the practice of medicine. Part of the tradeoff in Texas was the recognition that the appropriate control on the practice of medicine is the licensing agency. There are an increased number of investigations going before the Texas Medical Board. The fears that this would turn loose a “Wild West” lack of quality has not been founded.
I personally believe that in some respects, the quality of ED care has improved. We have consultants available who are willing to see these patients, who are often times without established physicians, who are among the sickest, on holidays and weekends. Part of it is recognizing that there is some protection, that in seeing these severe cases the consultant is not going to be sued and punished for doing their job. Before this law was passed, I heard many physicians express concerns of being blamed for an adverse outcome out of their control, fear of losing their practice, of losing their homes, just by doing what they consider to be the appropriate medical response.
What this law has allowed me to do is to carry on a much better informed consent discussion with patients. I don’t feel obligated to order a CT scan on every child who bumped his head, because I not only have good clinical guidelines stating I don’t need to do that, but I also don’t have to be afraid of the one out of 1,000 or one out of 10,000 results. I feel much more comfortable explaining to the parents that the likelihood of serious injury is extremely low, and that there are legitimate risks associated with the radiation. I have the Texas law to support me in providing this reasonable care. Before the law passed, I really couldn’t count on that. I couldn’t assume that doing the right thing would necessarily stand up in court, or prevent a case from being filed. Many times, it wasn’t negligence we got sued for, it was a bad outcome. There is a little bit of a herd mentality. When everybody sees that suing is the response to any less-than-ideal outcome, that is not healthy for the patients, or for physicians, or for our society.
We have an effective system in place. The medical board is not tolerant of people who are sloppy or not doing their job well. The solution is not five years of litigation and an adversarial relationship. We have a profession that can be regulated. These issues can be addressed in another mechanism, rather than taking it to court with a long-term litigation process that’s very disruptive to physicians — and, in many respects, to patients — and doesn’t effectively meet anybody’s needs. Now, I’ve got the ability to deliver a good quality of care without the unreasonable fear of the risk of an extremely unusual bad outcome forcing me to do things that in many respects are not in the patient’s best interest. It has restored a better integrity to the practice of taking care of patients with emergency medical conditions.
‘Almost Impossible to Win at Trial’
Brant Mittler, MD, JD, a practicing cardiologist for 40 years and a litigating attorney for the past 15 years:
It’s very clear to me, in Texas, as a practicing attorney, that we are just not taking ED cases. I would be surprised if many lawsuits against ED doctors have been filed in Texas in recent years. The “willful and wanton” negligence standard is just too hard to overcome for plaintiffs. I think it’s almost impossible to win at trial. Defense counsel have bragged that even if we win at trial, they will appeal, and the Texas Supreme Court will probably take away or reverse our verdict.
My trial partner and I did try an ED case in state court in San Antonio. A woman named Jennifer McCreedy accidentally stepped off her back porch at night and shattered her ankle.2,3 She was taken to the ED at one of the largest urban hospitals in San Antonio. The ED physician admitted under oath that he had treated fractures like this before, and in every other case he had reduced the trimalleolar fracture, and called an orthopedic surgeon to the ED. The patient’s treating board-certified foot and ankle surgeon came to court, at no charge, and testified that the ED doctor’s treatment was below the standard of care. A well-credentialed Texas emergency physician who not only practiced but taught in an emergency medicine training program testified that there was gross negligence. The ED doctor tearfully admitted during the jury trial that he was negligent, that he failed to meet the standard of care, but that he wasn’t grossly negligent. We thought we had a good case, but the jury gave the doctor a pass after deliberating less than an hour. The only real threshold question was: Was it gross negligence?
We learned our lesson. We have since turned down many ED cases, including bad death cases. Yes, patients and their families can file complaints with the state medical board. I don’t know how often that occurs. I suspect rarely. Even though I sue doctors, I also represent doctors in hospital credentialing, peer review, and state medical board matters. Some of those cases have involved ED care. In one instance, a large hospital system was critical in peer review actions against an independent physician in the ED, but at the same time was not critical of the conduct of its own contracted ED doctors in the very same case. Another hospital refused to take action against a cardiologist who was associated with a large group that had essentially an exclusive contract with the large hospital system, despite repeated criticisms over the misreading of a diagnostic study in an ED that resulted in patient harm. Hospitals seem to see the ED as a place to make money, punish competitors, and support doctors they have a business relationship with. Patient safety appears to be way down their list of concerns.
Texas courts have said the gross negligence standard represents a lower standard of care.4 I don’t think that when someone goes to an ED with an acute heart attack they want a lower standard of care. They probably expect a higher standard of care.
Most of the time, if the story the family or patient tells sounds egregious, I’ll look at the medical records. Often, I have to explain that we can’t take the case because it happened in the ED, and there is a gross negligence standard that will be impossible to meet in court. I have had more than one conversation where people expressed outrage and alarm. I tell them to call their state legislators or the governor. But in red state Texas, that’s a futile process.
In one surprising case, the Texas Supreme Court upheld a gross negligence award against an ED for failing to provide a stat echocardiogram in a patient with an acute heart valve problem.5 The court said that because the hospital had entered into a contract to provide stat services, and didn’t have it available, there was gross negligence. But that’s a rare case. In general, I think most plaintiff attorneys feel that even if by chance you get a jury verdict, which would be a rare event, the defendants would certainly appeal it so as to never have the gross negligence standard changed. The business community and the Texas Medical Association have very effective lobbies. They have convinced Texans that unless we rein in those dangerous plaintiff attorneys, they won’t be able to find a doctor. A study in The New England Journal of Medicine showed that after tort reform, the rate of ordering CTs and MRIs in ERs didn’t change a bit in Texas Medicare beneficiaries.6 The cost of care came down just a bit in Georgia, and didn’t even change in Texas and South Carolina.
So, this idea that tort reform is going to save money and reduce unnecessary testing — that is nonsense. And why is that? Doctors order those tests because of uncertainty. We get a lot of information from those tests. Other legal scholars have also shown that Texas tort reform did not increase doctor migration to Texas or to rural areas, and, in fact, increased the occurrence of adverse patient safety indicators.
In the McCreedy case, people may say, “We saved money from a frivolous lawsuit. That greedy plaintiff, we showed her.” But what was the reality? This woman, a single mother raising a son, who was a hard-working, solid citizen before her freak injury? She now walks with a limp, uses a cane, has a chronic pain syndrome, and is disabled. She went on Social Security disability, rightfully so, and after two years went on Medicare. So, the risk for negligent ED care got shifted from the doctor’s and hospital’s insurance companies to the U.S. taxpayer. The insurance companies didn’t have to pay. The taxpayers are paying for it. That’s a really important point. Hospital EDs may dodge the risk. But it shows up in other parts of the economy, as the U.S. taxpayer gets handed the bill — a classic risk shift.
- Texas Civil Practice and Remedies Code § 74.153.
- Ramshaw E. State’s tort reform makes lawyers wary of taking on patients. The New York Times, Dec. 18, 2010. Available at: . Accessed July 7, 2017.
- McCreedy v. Methodist Healthcare System of San Antonio, LTD, LLP d/b/a Southwest Texas Methodist Hospital. 2008CI11854 (45th Judicial Dist Bexar Co, Tex.).
- Jackson v. Axelrad, 221 S.W.3d 650, 655 (Tex. 2006).
- Hernandez v. Lukefahr, 879 S.W.2d 137, 141 (Tex. App.-Houston [14th Dist.] 1994, no writ).
- Waxman DA, Greenberg MD, Ridgely S, et al. The effect of malpractice reform on emergency department care. N Engl J Med 2014;371:1518-1525.
- Vicky Gould, Vice President of Claims, ProAssurance Companies, Austin, TX. Phone: (800) 252-3628 ext. 7350. Email: [email protected].
- Brant S. Mittler, MD, JD, San Antonio, TX. Phone: (210) 698-0061. Fax: (210) 698-0064. Email: [email protected].
- Arlo F. Weltge, MD, MPH, FACEP, Clinical Professor, Emergency Medicine, Department of Emergency Medicine, McGovern School of Medicine, University of Texas at Houston. Phone: (713) 667-4113. Email: [email protected].
Two Texas physicians weigh in on how tort reform, in their view, has affected the practice of emergency medicine and malpractice litigation in their state.
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