Tougher Standards for Proving ED Malpractice?
Burden is greater for plaintiffs
If the plaintiff had to prove beyond a reasonable doubt that an emergency physician (EP) made a wrong decision, “there are so many gray zones in medicine that there would never be a plaintiff judgment again,” says Kevin Klauer, DO, EJD, chief medical officer for Emergency Medicine Physicians in Canton, OH, and a member of the board of directors at Physicians Specialty Ltd. Risk Retention Group.
States including Arizona, Texas, Florida, Georgia, South Carolina, Utah, and West Virginia have all successfully enacted some degree of special liability protection specifically for emergency care providers. This approach to tort reform is “very different from caps that would limit the amount of damages,” says Klauer, and instead, focuses on the standards for burden of proof and duty of care.
In most states, the burden of proof to prove ordinary negligence is simply a preponderance of evidence, notes Klauer. “Contrast that to criminal cases, where no one gets put in jail unless the case is proved beyond a reasonable doubt. That is the instruction that the jury would get,” he says.
In contrast, a preponderance of evidence standard means there is “simply enough evidence that tips you over beyond the 50% mark. Then you have proven ordinary negligence, and there will be a plaintiff’s verdict,” says Klauer.
One tort reform strategy, says Klauer, is to “up the ante” for the standard of burden of proof from a “preponderance of evidence” to “clear and convincing.”
Duty of Care
The current standard for duty of care is what a reasonable provider would do under similar circumstances, says Klauer. “We are all familiar with that,” says Klauer. “But some states have tried to get a ‘willful and wanton’ standard for the duty of care.” This means that in order to prove negligence, the plaintiff would have to prove that the physician actually tried to harm the patient or knew something would harm the patient and did it anyway.
“One step down from that is gross negligence. Basically, that is synonymous with recklessness,” says Klauer. An example, he says, would be an EP who has never done a procedure before, and either knew or should have known it would harm the patient.
Michael Frank, MD, JD, General Counsel for Emergency Medicine Physicians, testified on behalf of the Ohio chapter of the American College of Emergency Physicians before the Ohio Senate Committee considering the state’s immunity bills, both in 2009 and 2011. The original bill in 2009 proposed applying the “willful or wanton misconduct” standard for abrogating immunity, however.
“But last year, the bill had been watered down to applying immunity only if the alleged conduct did not display ‘reckless disregard.’ That is a considerably lower standard than ‘willful or wanton misconduct,’” says Frank.
Reckless disregard is defined in the bill as “conduct that a physician ... knew, or should have known, at the time those services were rendered, created an unreasonable risk of injury, death, or loss to person or property so as to affect the life or health of another, and that risk was substantially greater than that which is necessary to make the conduct negligent.”
The “willful or wanton misconduct” standard survived in the provisions of the bill applicable to services provided in a disaster, but not to most emergency services provided pursuant to EMTALA, says Frank, and the immunity also does not apply to cases alleging wrongful death.
A judge in a malpractice case can always decide whether to allow a case to get to a jury, or decide to dismiss it, as a matter of law, because the plaintiff cannot make a case that meets the applicable standard, whether that standard is “willful or wanton misconduct” or “clear and convincing evidence.”
But because the “willful or wanton misconduct” standard is so much more difficult for a plaintiff to overcome, a judge is much more likely to throw out a case (and a plaintiff is much less likely to file the lawsuit in the first place) than if the standard is “clear and convincing evidence,” says Frank.
“‘Clear and convincing evidence’ is still a huge evidentiary hurdle for plaintiffs,” says Frank. “But better to never get to a jury in the first place.”
A national standard would be ideal, says Klauer. “But I just don’t see that coming in the near future at all. All the activity for tort reform is on a state level,” he says. “And there could be some repeals.” In Georgia, the burden of proof standard was maintained, but the elevated duty of care standard was repealed, he notes.
A “gross negligence” standard of duty should reduce the number of cases in which a patient is compensated simply because a bad outcome occurs, says Klauer.
“When things just didn’t work out quite right, people are penalized because of that. Careers are ended and physicians commit suicide over these cases,” he says. “This is a way to say to the public and to plaintiff attorneys, ‘Our hearts are in the right place and we are trying to do the best we can with limited resources. Maybe the standard of duty is too high and the burden for the plaintiff is way too low.’”
To view pertinent legislative language from the states that have helped successfully enact legislation that provides some degree of special liability protection specifically for emergency care providers, along with copies of similar bills introduced in other states and related talking points, legislative testimony, and report findings, go to: http://www.acep.org/Advocacy/Pursuing-Special-Liability-Protection-for-Emergency-Care.
Sources
For more information, contact:
- Kevin Klauer, DO, EJD, Chief Medical Officer, Emergency Medicine Physicians, Canton, OH. E-mail: [email protected].
- Michael Frank, MD, JD, General Counsel, Emergency Medicine Physicians, Canton, OH. E-mail: [email protected].
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