Persistence, Pragmatism Help Utah ACEP Get State Liability Law Passed for Emergency Providers

ACEP News 
June 2009

By Christie L. Carter
ACEP News Contributing Writer

A 5-year journey filled with tireless effort recently resulted in a significant victory for Utah ACEP when its liability protection bill was signed into law. The bill, which goes into effect July 1, 2009, raises the standard of evidence required in liability cases against emergency care providers and on-call specialists from a "preponderance of evidence" to "clear and convincing evidence."

Though Utah ACEP members originally considered a gross negligence standard, they chose to fight the battle they felt they could win. "Our attorney advised us that even if the state legislature passed the gross negligence standard, the state Supreme Court would never uphold it," said Dr. Jim Antinori, medical director at Mountain West Medical Center in Tooele, Utah, and past president of Utah ACEP. "As a result, he advised us to try for the standard of clear and convincing evidence, which we ultimately did."

The hard-fought battle was worth the effort, and the result is a bill that Utah ACEP members believe will decrease frivolous lawsuits and malpractice premiums, reduce the burnout rate among emergency physicians, and reverse the trend toward fewer specialists who are willing to take emergency department calls.

"It was becoming increasingly difficult to get our patients the care they needed--that's why we began this journey," said Dr. Antinori.

What were the chapter's keys to success, and what thoughts does Dr. Antinori have for other state chapters striving toward the same legislative goals?

  • Gain the support of your state medical association. "We realized that our chances of any bill passing were much stronger if we had the full support of our state medical association. You need to become tightly integrated in your state medical association on a long-term basis. By the time we introduced this legislation, we had the full support of the Utah Medical Association, and that was critically important."
  • Encourage physician involvement. "No matter how convincing lobbyists or your chapter board might be in the legislature, there is nothing more effective than phone calls or visits from constituents," Dr. Antinori said. "When we were fighting to get this bill through the legislature, we sent e-mail alerts to almost every emergency physician in the state requesting that they contact their legislator and tell them this was an important bill for emergency physicians and our patients. And that effort was successful. Many emergency physicians called or visited their state senator or representative. It's extremely important to have physicians become politically involved in lobbying their legislators."
  • Rely on National ACEP. "National ACEP was incredibly helpful in providing us with background information and statistics that were very beneficial, especially in the early days of our efforts," he noted. "They also provided much-needed support, because the bottom line is that it's hard to do this alone--and if you try, you're less likely to be successful."
  • Show that this isn't just a pocketbook issue. "The EMTALA mandate is a very unique and special aspect of emergency medicine, in that we must treat all patients, regardless of ability to pay. But as a result, specialists were refusing to take emergency call and emergency physicians were leaving the specialty," he said. "The main point here can't be physicians' pocketbooks--you need to show how the current climate is impacting patient care."
  • Don't get discouraged. "It took us three attempts to get this bill through the Utah Legislature--and even then we had to compromise on some of the language and add a sunset provision," Dr. Antinori said. "It took a very fortunate convergence of circumstances that allowed us to get the bill passed, but if we had not taken our lumps during our previous attempts, I doubt we would have been prepared to accomplish what we did this year."

What Other States Are Doing in The Liability Protection Arena

Seven states have now enacted some kind of special liability protection for emergency care, and legislation is under active consideration in at least a half dozen more. However, states have approached this issue in a number of ways, according to Craig Price, ACEP's chapter and state relations director. Some, like Utah, focused on changing the standard of evidence, while others have looked at raising the bar regarding the degree of negligence that must be proven in emergency care cases.

"In those instances, instead of just proving simple negligence, a plaintiff must demonstrate that a provider's actions amounted to gross negligence, or willful and wanton negligence, or that the provider's actions showed a reckless disregard for the consequences," said Mr. Price. Chapter members choose among these variations based on the approach they believe has the highest likelihood of passage and the highest probability of effectively alleviating the liability problem in their state.

"No matter which option they choose, the ultimate goal is the same--to align their state's liability laws with the realities of the emergency care environment so that the law properly takes into consideration the high-risk nature of making split-second decisions to provide lifesaving care, often with no knowledge of the patient or his medical history," said Mr. Price. But "chapter members should remain vigilant even after their liability reforms are passed, as opponents are likely to continue to push to overturn the laws."


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