Legislator renews ER malpractice fight

Unwilling to take “no” for an answer, the head of the Senate Health Committee is going to try again this coming year to make it harder for those injured in hospital emergency rooms to successfully sue. And this time she hopes Gov. Janet Napolitano says “yes.”

The measure by Sen. Carolyn Allen, R-Scottsdale, would require patients to prove “by clear and convincing evidence” that the care they received did not meet the professional standards expected. That is more difficult burden than the current requirement for a plaintiff to show only that is it more likely than not the doctor committed malpractice, a standard that would remain in place for virtually all other types of medical claims.

Allen pushed that identical wording through the Legislature in 2006, only to have it vetoed by the governor. Napolitano said she saw no evidence that making the change would cure the problems of doctors being unwilling to work in emergency rooms.

Since then, a task force appointed by the governor has come up with a list of recommendations for ways to ensure there are doctors — and specialists in particular — available when patients come to hospital ERs. Altering the standard of proof for malpractice cases is only one of the items on that list.

But Allen said she believes doctors who tell her that making it harder to win a malpractice verdict “would give them the most comfort to be on call 24/7.”

That’s also the assessment of John Rivers, president of the Arizona Hospital and Healthcare Association. He said the higher standard of proof is an appropriate trade-off for ensuring the availability of doctors.

But JoJene Mills, a lobbyist and past president of the Arizona Trial Lawyers Association, said lawmakers are missing the point.

“The answer is the quality of medical care needs to improve so that fewer people get hurt,” she said. That means better policing of errors committed by doctors and hospitals.

“Until we start seeing doctors really looking at those questions, why in the world should Arizona citizens be required to give up their rights to sue?” Mills asked.

Rivers said the medical community does have a responsibility to reduce errors “as much as humanly possible.” But he said that, by itself, won’t solve the problem of getting doctors to practice emergency medicine.

“There have been studies done in some other states that show physicians are more comfortable practicing in a setting where they know that the legal system recognizes that it’s different when you treat an emergency patient than when you treat somebody else,” he said.

“ER physicians are seeing patients they’ve likely never seen before who have serious illnesses that require immediate intervention,” Rivers said. “And so the hazards there are greater than they are for a family physician who is seeing one of his own or her own regular patients.”

Mills agreed that emergency treatment is different. But she said that’s already recognized in law.

She pointed out that existing state law says individuals cannot succeed in pursuing medical malpractice claims unless they show the care provided fell below what would be expected of a doc- tor “acting in the same or similar circumstances.”

That, Mills said, means the actions of a doctor seeing a patient for the first time in an emergency room must be judged against what other professionals would have done in the same situation.

“Juries get to hear all of that,” she said.

Rivers responded that law still doesn’t give emergency room doctors the protection from lawsuits they believe they need.

The entire legislative debate could prove academic unless Napolitano changes her mind and agrees to sign the measure, or at least let it become law without her signature.

“We are looking at ways we might be able to work with Sen. Allen on that issue,” said Mike Haener, the governor’s lobbyist.

One potential area of compromise might be if the legislation included more than just the change in liability standards. Haener noted there were other recommendations that came from Napolitano’s task force.

“Hopefully, we can get into a discussion of what the problem is. Are there solutions that we can all agree to that might help solve the problem, and move forward?” he said.

Some of the items on the task force’s list already are being addressed, such as expanding the number of doctors being trained in Arizona. The state has since opened a new branch of the University of Arizona College of Medicine in Phoenix.

One of the recommendations suggests a financial component: More money and financial incentives for doctors who work or at least are on-call for emergency rooms.

Rivers said most hospitals already are paying extra money to specialists to take emergency room calls. But he said that’s not a good long-term answer.

“That’s an awfully expensive way to solve this problem,” he said.

“If we’re having to pay physicians $1,000 or $2,000 or $3,000 a day just to be available to take emergency room, that’s going to have a tremendous impact on the cost of health care,” Rivers continued. He said hospitals are “trying to be sensitive’’ to both the cost and availability of medical care.

“But it’s very difficult to solve one of those problems without having a negative impact on the other,” he said.