February 24, 2023

Surprise Billing, Rattlesnakes and Negligence: ACEP Files Two Amicus Briefs

ACEP and our other medical society partners filed the following amicus briefs in our continual fight for the rights and protection of our members:

1. TMA IV - Texas Medical Association v. HHS et al. - Eastern District of Texas
This brief was filed in support of the plaintiff's Motion for Summary Judgment in this fourth lawsuit against the Feds. Our brief, filed with ASA and ACR, focuses on the following issues:

  • The unlawful 600% increase (from $50 to $300) in cost-prohibitive, non-refundable administrative fees required for any party initiating the IDR process. 
  • The equally unlawful restriction of batching claims to the same or similar service code.
  • Our concerns are that these restrictions render the IDR process infeasible for the parties and will drive down payments for the out-of-network services for many of our members, effectively preventing them from challenging unfair payments.
ACEP's legal team will provide further updates after it attends oral arguments on TMA III and IV on April 19. 

2.  Marsillo v. Dunnick - Texas Supreme Court - Filed with TCEP
ACEP and TCEP filed an amicus brief in support of the defendant's motion before the Supreme Court, emphasizing the importance of protecting emergency physicians via the heightened negligence standard set forth by state law. A short synopsis of the case is as follows:

The minor Plaintiff was bitten by a rattlesnake approximately an hour before presentation to the ED. Within minutes of arrival, the patient was triaged and seen by the doctor, who immediately implemented the hospital’s snakebite protocol. That resulted in monitoring and testing of the child for about three hours until the patient met the guideline’s criteria for administration of antivenom. The total elapsed time from snakebite to antivenom administration was about four hours. While the child was ultimately unharmed, she required additional medical treatment, which her family believed could have been avoided had she received the antivenom sooner.

Texas is a state with heightened statutory requirements to prove medical malpractice. The doctor moved for summary judgment because the evidence did not establish that she acted with willful and wanton negligence, or gross negligence, and did not establish proximate cause. The trial court agreed and granted summary judgment. Plaintiff appealed, and the Court of Appeals reversed. The critical sentence of that opinion (regarding the willful and wanton standard) is:
[A]lthough Dr. Marsillo’s adherence to Seton Hay’s snakebite treatment guidelines may explain why she decided to wait three hours after Raynee’s admission to order antivenom treatment in this case, it does not negate the possibility that, objectively, her adherence to the guidelines posed an extreme risk of harm to Raynee or that, subjectively, she was aware of that risk.

There is no evidence that the doctor was subjectively aware of a risk. The appellate court also never explained why following a treatment guideline for the exact condition the patient suffered would amount to deliberate indifference. If allowed to stand, the Court of Appeals’ opinion will make it virtually impossible for an emergency medicine clinician to obtain summary judgment under the emergency medicine statute, forcing our members to be exposed to the risks of an adverse verdict at trial as well as take them away from caring for patients.


Related: During the past 12 months, ACEP’s litigation efforts increased by over 400 percent. Courtroom advocacy is one of many ways ACEP fights for its members. 

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