Although several states have enacted liability reform legislation for ED care, efforts at the federal level have been less successful. Some recent developments:
- The House narrowly approved the “Protecting Access to Care Act of 2017” (H.R. 1215). The vote was 218 to 210, with 19 Republicans voting against the bill. “The Republican opposition was based mainly on their belief that this type of medical liability bill is within the jurisdiction of the states,” says Brad Gruehn, congressional affairs director at the American College of Emergency Physicians (ACEP).
H.R. 1215 would limit non-economic damages to $250,000, restrict attorney contingency fees, and establish a three-year statute of limitations after the injury (or one year after the claimant discovers the injury).
- ACEP is building a co-sponsor list for the Healthcare Safety Net Enhancement Act (H.R. 836). “It’s always helpful to have a good showing from members of Congress in order to show leadership it has support,” Gruehn says. This legislation would provide liability protection to physicians who perform medical services required by the Emergency Medical Treatment and Labor Act (EMTALA). “Unfortunately, an amendment to H.R. 1215 that would provide specific protections for EMTALA-related services was ruled non-germane by the House parliamentarian, and therefore couldn’t be offered on the floor,” Gruehn notes.
EMTALA requires EPs to provide a medical screening exam to every patient who presents to an ED, regardless of the severity of the patient’s condition or his or her ability to pay. “By engaging in the practice of emergency medicine, the EP accepts this responsibility and with it, an inordinate amount of risk — far greater, many believe, than the risk facing an office-based physician or surgeon,” says Mollie K. O’Brien, Esq., director of claims at Coverys, a Boston-based provider of medical professional liability insurance.
O’Brien notes that ED patients “bring many unknowns, from prior medical history to current medication usage.” Yet, an EP does not have the right to refuse to see them. “It is reasonable to argue that in exchange for the EMTALA mandate and the heightened risk visited upon the EP, EPs should have the quid pro quo of a higher bar for liability. Gross negligence would be that answer,” O’Brien says.
- ACEP is closely watching the Good Samaritan Health Professionals Act (H.R. 1876). This legislation would shield healthcare professionals who volunteer during a federally declared disaster from liability. Although the “Volunteer Protection Act” was enacted in 1997, it only covers providers who join nonprofits or government entities during emergencies.
“H.R. 1876 protects those who volunteer on their own,” Gruehn explains.
However, there are no plans right now for the Senate to take up any of these proposals. “I don’t know where it would fall on the agenda, in terms of trying to move legislation,” Gruehn says. Other pressing issues include the debt ceiling, appropriations, Federal Aviation Administration reauthorization, and Children’s Health Insurance Program reauthorization.
“Historically speaking, the Senate has always had more difficulty dealing with healthcare liability than the House,” Gruehn notes.
Even if the Senate did consider one of the proposals, any individual senator could oppose and filibuster it.
“Therefore, it would require a 60-vote threshold to even consider the legislation going forward,” Gruehn says. “Given the split of Republicans and Democrats in the Senate, that would be a very high bar to reach.”
The considerable clout of trial lawyers in Washington is another longstanding obstacle. “They have a very close relationship with a number of members,” Gruehn adds. Previous efforts to pass legislation on liability reform at the federal level have been unsuccessful.
“The states have been somewhat more successful,” Gruehn offers. The Florida Supreme Court recently ruled that a law limiting pain and suffering damages in medical malpractice cases is unconstitutional.1
“That was a sharply contested 4-3 decision,” Gruehn says. “Like most issues these days, Floridians and the rest of America seem to be deeply divided on political matters.”
Historically, Democrats have taken the position that liability reform is a state issue and shouldn’t be handled at the federal level. Now, several Republications are making the same argument.
“That has made our argument a little bit easier on the EMTALA front, because there is a federal mandate to provide that care. We’ve had some success even with individuals who otherwise oppose federal liability protection,” Gruehn says.
Significant numbers of Democrats supporting liability reform legislation remain unlikely, he acknowledges, “but in this world, if you can get any Democratic support at all, that’s somewhat impressive.”
- North Broward Hospital District et al. v. Kalitan, 174 So.3d 403.