States Enact Liability Reforms Specific To Emergency Care

Martha Collins
March 18, 2008

ACEP chapters in some states have helped enact legislation that provides special liability protection specifically for emergency care providers, including emergency physicians and on-call specialists.

The special liability protections, which vary by state, fall within two general categories—lower caps on damages and higher standards of negligence.

The chapters worked to persuade legislators that because of the unique nature of emergency care, providers deserve special consideration under a state’s liability laws. Their successful strategies ranged from joining forces with others in the medical community and identifying public support to targeting political contributions and lobbying by chapter members.

Joining forces with others in the medical community
In 2003, West Virginia enacted legislation placing a $500,00 cap on total damages in liability cases arising out of emergency care provided at a designated trauma center, which covers most of the EDs in the state. Emergency physicians played a key role in getting the provision passed.

"Tort reform was going nowhere, but the West Virginia College of Emergency Physicians decided to tackle it anyway. We hired a constitutional lawyer who worked with our chapter executive to write a bill," said Rick Blum, MD, Morgantown, WV, a past president of ACEP and of the West Virginia Chapter.

"Then something happened that changed the climate for reform," said Dr. Blum. A group of 19 surgeons in Wheeling, West Virginia announced that they would not perform elective surgeries until the liability situation in the state was fixed. They withheld their services by transferring non-emergency surgeries out of Wheeling.

"This changed the climate so that reform had a chance of passing," said Dr. Blum. "Then the West Virginia Medical Association adopted the language of our bill and added a few details. So our version became the starting point for the bill. It didn’t get changed much and essentially was passed intact."

It helped that other specialty societies got behind the bill. "And so did the business community, because the business environment was not good with doctors leaving the state and communities being underserved," Dr. Blum noted

"Since the reforms were enacted, we’ve stemmed the tide of physicians leaving, and now physicians are coming into the state, and premium costs have stabilized," he said.

"We have about 130 members in the West Virginia chapter and we were able to make a significant difference in our state’s liability reform," Dr. Blum said. "Even a small group of committed people can get things done."

Identifying public support and educating legislators
In Florida, the liability reforms that have been enacted since 2003 include not only a $500,000 cap on non-economic damages for all physicians, but also a provision that physicians providing emergency care are subject to a non-economic cap of $150,000, with no exceptions. In addition, "reckless disregard" must be proven in order for physicians to be held liable in cases in which they provide EMTALA-related emergency care.

"This is part of the Florida access-to-care law, which is the state law that parallels EMTALA. It applies to on-call physicians, not just emergency physicians. That’s important because that’s how we got it enacted; it applies to the whole house of medicine that is on call—to all emergency care providers," said Vidor Friedman, MD, Orlando, FL. Dr. Friedman is on the board of directors of FCEP, chairs the FCEP government affairs committee, and is also on the board of directors of NEMPAC.

FCEP used funds from an ACEP chapter grant to conduct a survey of voters throughout the state, which revealed that half of all respondents had themselves been to an ED or had a family member who been to an ED in the previous year. Most survey respondents agreed that emergency care providers deserved special liability protection. The survey results were helpful in bolstering the case for passing the liability reform legislation.

FCEP raised almost $100,000 more than its normal revenues to help fund its efforts.

"We spent a lot of time in Tallahassee working with the legislature. We have our own lobbyist," said Dr. Friedman. "We worked hard to make sure they understood the importance of safeguarding the emergency care situation in Florida by dealing with the unique nature of emergency care—with the fact that the involuntary doctor-patient relationship that happens in emergency medicine is distinctly different from the typical doctor-patient relationship, and so it brings with it additional liabilities for physicians."

FCEP originally sought complete protection from liability for emergency care providers through sovereign immunity, whereby the state would assume such liability. That provision was kept in the bill until just before passage, at which time a compromise instead established the lower cap and the "reckless disregard" standard.

The role of ACEP and the state chapters in working for liability reform is critical, according to Dr. Friedman. "To really take care of our patients we need to get actively involved politically. The whole environment of medical care is very dependent on the legislative process," he said. "The largest payer is government and the decisions made by that payer affect the quality of care. If we don’t get involved in those decisions made by government, then others will."

Targeting political contributions  
In South Carolina, liability reform legislation passed in 2005 set a $350,000 cap per defendant. The law also shields physicians from liability (except in cases of gross negligence) for care provided in an emergency in which there is an immediate threat of death or serious bodily injury and the care is rendered in an ED or obstetrical or surgical suite. There is similar liability protection for physicians who provide emergency obstetrical care when there is no physician-patient relationship or the patient had no prenatal care.

The South Carolina College of Emergency Physicians worked in conjunction with the South Carolina Medical Association and other specialty societies, hospital associations and nursing homes. One especially effective strategy was a "disappearing doctors campaign," which was a television advertising campaign showing pins on a map to indicate the loss of physicians in particular specialties in various areas around the state.

"That campaign made the need for tort reform much more personal to the legislators, as they saw that access to particular specialties was decreasing in their hometowns," said Richard Schmitt, MD, a past president of the South Carolina College of Emergency Physicians, and currently president-elect of the South Carolina Medical Association.

Every legislator was also given a video produced by Doctors for Medical Liability Reform, a national organization supported by ACEP and other specialty societies.

In addition to hiring a lobbyist to push the reform measures, South Carolina chapter members personally contacted influential legislators. "And campaign contributions from both the association and individual members were significantly increased and focused on specific legislative races that would make a difference in potential voting on the reforms," he said.

That funding affected the outcome in at least four legislative races, according to Dr. Schmitt. "In fact, the previous year, a reform bill had not passed because it was put on the legislative contested calendar by one senator, who was a 20-year incumbent. We actually helped unseat that incumbent by focused funding to an opponent," he said.

"The strategies employed to achieve liability reform were successful because this effort was much more organized than previous efforts—not only within the chapter, but within the other specialty societies and the medical association," said Dr. Schmitt. "We made it much more visible as an access issue and we made it personal to the legislators."

Lobbying and testifying in support of reforms
In 2005, Georgia passed a law requiring that in emergency care cases, no provider shall be held liable unless it is proven by "clear and convincing evidence that the physician or health care provider’s actions showed gross negligence." In such cases, the jury must be instructed to consider the nature of the emergency and the circumstances surrounding it, including whether there was a previous physician-patient relationship, and whether the physician had access to the patient’s medical history. This standard applies to emergency pre-stabilization care provided in an ED, surgical suite or obstetrical suite.

"The law is interpreted as applying to any physician called upon to treat an emergency in the emergency department," noted Maureen Olson, MD, Atlanta, president of the Georgia College of Emergency Physicians (GCEP).

In working for liability reform, GCEP took a multi-pronged approach over several years, including hiring a lobbying firm, joining forces with the Medical Association of Georgia (MAG) and other specialty societies as well as the Georgia Chamber of Commerce, and contributing to legislative races through its Georgia Emergency Medicine Political Action Committee (GEMPAC).

"We raised funds vigorously and gave contributions to legislators in both the senate and house. Although we contributed with MAG, we also did our own fund raising because we wanted to make sure that the words, "emergency medicine" were in front of every legislator’s eyes all the time," Dr. Olson said.

"We had a system in place so that when there were hearings on tort reform our phone tree would be activated and we’d make sure that we had some emergency physicians who testified," she said. "And we actually had people come from Texas, which had already passed its tort reform. Their testimony was key in our hearings."

GCEP also sponsored a "Legislative Day Luncheon" every January and invited all emergency medicine residents from the Medical College of Georgia and the Emory University Medical School to attend along with GCEP members. Afterward, they met with the legislators individually in their offices.

"We always included the residents because the legislators were often more interested in what the residents said and what they planned to do. They want to keep the residents in the state," said Dr. Olson. "And 2007 was the first year we had an increased percentage of residents who chose to stay in Georgia after their training. They did it specifically because of the tort reform."

Key lessons learned 
Successful chapters have noted a number of key lessons they learned from their efforts to enact special liability protection for emergency care providers.

  • Keep your message simple. Relate it to the mandate to provide emergency care.
  • Emphasize the issue from a patient-access-to-care/patient-safety perspective.
  • Work with the biggest players you can (state medical associations).
  • Find influential legislators who have a connection to physicians to help with the effort.
  • Have a core group of members who are willing to spend considerable time developing relationships and maintaining contact with legislators. Personal attention is key.
  • Invest in a well-connected lobbyist. In choosing a lobbyist, pay close attention to their relationship with key decision makers.
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