Enacting Special Liability Protection for Emergency Care

ACEP chapters in Arizona, Texas, Florida, Georgia, South Carolina, Utah and West Virginia have helped successfully enact legislation that provides some degree of special liability protection specifically for emergency care providers. (The pertinent legislative language from these states, along with copies of similar bills introduced in other states and related talking points, legislative testimony and report findings are all available by clicking here.)

The State Legislative/Regulatory Committee conducted a survey of leaders from some of these chapters to ascertain the organizational and legislative strategies they employed to pass this legislation, the key lessons they learned from engaging in this effort and the impacts they are seeing as a result of their success.  It is the committee's hope that this information paper will be helpful to other chapters that may contemplate similar legislative efforts in their states.

What is Special Liability Protection?

Given the unique nature of emergency care, a solid case can be made that emergency care providers…including emergency physicians and on-call specialists…deserve special consideration under a state's medical liability law.  In most instances, this legislation provides additional liability protections for emergency care rendered either for the duration of a patient's pre-stabilization care or within a set time limit (such as 24 hours) after a patient presents with an emergency medical condition at an emergency department (ED).  The type of special liability protection varies by state, but falls within two basic categories:

Lower caps on damages:

While the Florida legislature passed a soft $500,000 cap on non-economic damages for all other physicians, a hard $150,000 cap was placed on non-economic damages for emergency physicians and on-call specialists providing emergency care pursuant to state and federal emergency care laws. 

West Virginia officials enacted legislation placing a $500,000 cap on total damages in liability cases arising out of emergency care provided at a designated trauma center, which covers most of the emergency departments in the state. 

Higher standards of negligence:

Several states have adopted legislation that applies stricter legal standards to liability cases involving the provision of emergency care.  These stricter standards involve altering legal terminology that essentially raises the bar that plaintiffs must reach in order to prevail in cases against emergency care providers.  By doing so, it places a larger burden on the plaintiff, makes it more difficult for the plaintiff to prevail,  and may discourage plaintiff attorneys from pursuing specious or marginal cases against emergency care providers.  Consequently, it is hoped that a reduction in cases and awards against emergency care providers will subsequently lead to decreased liability premiums and increased availability of liability insurance. 

Georgia passed a law requiring "clear and convincing evidence that the physician or health care provider's actions showed gross negligence."  This standard applies to emergency pre-stabilization care provided in an emergency department, surgical suite or obstetrical suite. "Clear and convincing" evidence is a more stringent standard than the normal requirement of a "preponderance of the evidence" and "gross" negligence requires proof of harmful activity that rises above "simple" negligence.  In such cases, the Georgia law also requires juries to consider the circumstances surrounding the emergency, whether there was a prior physician-patient relationship, and whether the physician had access to the patient's medical history. 

A similar law was enacted in South Carolina.  The new law states that in emergency cases in the ED, obstetrical or surgical units, in which there is an immediate threat of death or serious injury, no physician may be held liable for providing pre-stabilization care unless it is proven that the physician was "grossly" negligent.  The standard only applies if there is not a previous physician-patient relationship.

Other changes in the legal language used to define liability are intended to have similar effect.  Florida law prohibits emergency care providers from being held liable in medical liability cases unless damages result from providing, or failing to provide, medical care or treatment under circumstances demonstrating a "reckless disregard" for the consequences so as to affect the life or health of another.  (The Florida chapter originally sought complete protection from liability for emergency care providers through sovereign immunity…in which the state would assume such liability.  This provision was kept in the bill until just before passage when a compromise was created that established the lower cap mentioned above along with the "reckless disregard" standard.)

Similarly, in Texas, legislation was passed in which the claimant bringing the suit may prove that the treatment or lack of treatment by the physician or health care provider departed from accepted standards of care only if the claimant shows by a preponderance of the evidence that the physician or health care provider, with "willful and wanton" negligence, deviated from the degree of care and skill that is reasonably expected of a prudent physician.

(Specific legislative language from these states can be found through ACEP's State
Legislative Office or on the State Advocacy section of the ACEP web site.

Arguments to Support Enactment of Special Liability Protection for Emergency Care Providers

  • Emergency medicine is an essential public service that involves unique challenges and circumstances that should be recognized and addressed in state medical liability statutes.
  • Emergency physicians must make immediate, lifesaving decisions regarding diagnosis and treatment without the benefit of a prior relationship to the patient and often without any knowledge of the patient's medical history.
  • Emergency physicians are mandated by federal law (and in some cases, similar state laws) to treat anyone who comes to an emergency department, regardless of the nature, severity or complexity of their condition.
  • Emergency physicians treat everyone regardless of their ability to pay and provide a large and growing amount of uncompensated and undercompensated care.
  • Everyone will need emergency care at some point, whether they are young or old, rich or poor, insured or uninsured.  It is imperative that the emergency care system remains viable and capable of providing high quality lifesaving care to the entire population.
  • The high-risk nature of emergency medicine results in escalating liability insurance rates.  These skyrocketing costs coupled with lost revenue from uncompensated care seriously threaten the future viability of the emergency care system.
  • Many insurers will not write policies for emergency physicians, resulting in a crisis of availability, as well as affordability of insurance in many parts of the country.
  • Other specialists providing essential on-call services to emergency patients are often in critically short supply, due largely to increased liability exposure, higher liability premiums and reduced reimbursements for providing emergency care.  State liability laws should not act to further discourage these specialists from agreeing to provide vital on-call services to emergency patients.
  • Several other states have recognized the unique needs and circumstances of emergency care and have enacted special liability protections for emergency care providers, including placing lower caps on non-economic damages and requiring a higher standard of negligence that must be proven in emergency care cases.

Strategies and Tactics Employed by Chapters that Enacted Special Liability Protection for Emergency Care Providers

  • Incorporate special liability protection for emergency care providers as part of a comprehensive liability reform package
    While other chapters have sought specific stand-alone legislation to enact special liability protection legislation (and such action may be necessary in states that have either already passed or refuse to enact comprehensive reforms), the chapters that have succeeded in enacting this legislation included it as a provision in a larger liability reform measure or in conjunction with a broader effort to enact comprehensive liability reform.  A benefit of this strategy is that opponents may not focus their efforts on defeating the emergency care protection provision. 
  • Win support from others in the medical community
    In pursuing this effort, a few chapters reported at least initial reluctance by others in the medical community, including state medical associations, to support the special liability protection provision.  Some chapters noted that state medical societies feared that such "carve-out" legislation for emergency care providers might undermine the effort to enact reforms that benefit the entire medical community.  Others indicated that their state medical society supported the effort once they understood that it would not just benefit emergency physicians, but all physicians involved in providing emergency care.  Educating the medical society and other state specialty societies about the range of physicians who would benefit from this legislation was cited as a key effort in order to gain additional support or at least eliminate opposition from others in the House of Medicine.  Even when these efforts were successful, chapters generally noted that they clearly needed to play the lead role in advocating for the legislation.
  • Educate legislators
    Successful chapters noted that legislators who understood the unique challenges involved in emergency care were typically receptive to this legislative initiative.  In some cases, legislators had been educated about these challenges in previous interactions with chapter members, further demonstrating the value of a chapter's active and ongoing state legislative program.  Regardless of whether legislators are aware of the nature of emergency medicine, educating them about the specific need for, and benefit of, this legislation is still critical to a successful effort and was a top priority of most successful chapters.  Chapters found that legislators who were inclined to oppose comprehensive liability reform efforts were equally as or more amenable to supporting special liability protection for emergency care providers.
  • Personal lobbying by members
    Not surprisingly, successful chapters indicated that the most successful tactic employed in their advocacy efforts was personal interaction with legislators of both parties.  Grassroots involvement by members was critical.  The Texas chapter noted that emergency physicians outnumbered all other specialties at the medical society's first planned lobbying day for physicians.  Contacts by members and meetings with influential legislators were noted as key efforts by the South Carolina chapter.
  • Identifying public support
    The Florida chapter…through an ACEP chapter grant…conducted a survey of voters throughout the state which revealed that half of all respondents had personally been to an emergency department or had a family member who had gone to an emergency department in the previous year.   Most respondents also agreed that emergency care providers deserved special liability protection.  The survey results were helpful in bolstering the case for passage of the legislation.
  • Development and use of compelling advocacy messages
    Successful chapters cited two primary compelling messages that resonated with legislators as they lobbied for passage of these measures.  The first dealt with the declining availability of on-call specialists and the need to provide this protection to help encourage more specialists to provide on-call services in the ED.  The second message centers on the federal/state mandate that emergency care is provided to everyone.  In order to fulfill that mandate and meet a critical public policy goal of the state, the state should provide liability protection similar to the protection it provides other private entities that perform a public service.
  • Anticipate and overcome obstacles to enactment
    The biggest obstacle to enacting this protection was, not surprisingly, aggressive efforts by plaintiff trial attorneys in each state to derail all liability reform efforts.  The large numbers of trial attorneys or friends of trial attorneys in most state legislatures further compounds the difficulty.  As mentioned earlier, however, in some cases the trial lawyers were more focused on defeating the more sweeping liability reform efforts and did not or could not extend all their considerable resources to oppose the special provision for emergency care providers.

    Some chapters also focused on avoiding engagement in the typical arguments and counterarguments associated with most liability reform efforts.  They worked to stay "on message" by arguing that emergency care is fundamentally different and deserving of separate attention.  Supportive facts, such as the clear decline of specialists in Texas, helped illustrate the problem. 
  • Devote sufficient chapter resources
    In addition to a commitment by the chapter and its members to work vigorously in contacting legislators and advocating for passage of the measure, successful chapters indicated that additional resources were required.  The South Carolina chapter hired a lobbyist for $30,000 to push the measure.  The Florida chapter raised almost $100,000 above its normal revenues to fund the effort, with expenses for lobbyists, member travel, staff time and other expenditures exceeding that amount.  The Texas chapter paid $10,000 in membership dues to an organization that represented the medical community in providing a major successful push for comprehensive liability reform.  The Texas chapter also noted particularly strong contributions to its PAC during this time.

Key Lessons Learned

Successful chapters noted a number of key lessons they learned from their efforts to enact special liability protection for emergency care providers.  Among them are:

  • 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.
  • Personal attention is key.  Have a core group of members who are willing to spend considerable time developing relationships and maintaining contact with legislators.
  • Invest in a well-connected lobbyist. In choosing a lobbyist, pay close attention to their relationship with key decision makers.

Impacts of Successfully Enacting Special Liability Protection

As the chapters who helped pass special liability protection for emergency care providers achieved success as part of broader liability reform efforts, it is difficult to identify the specific impact created by the single provision dealing with emergency care.  Further complicating an accurate assessment of the impact of this legislation is the ongoing threat of court challenges that could overturn these legislative victories.  Court challenges are expected in states such as Florida.  Legislative efforts to repeal the protection afforded emergency care providers have also been attempted in Texas and Georgia.

There is ample evidence that comprehensive liability reform, and the subsequent passage of a constitutional amendment that cemented the legality of the reforms, has had a significant impact in Texas.  Liability premiums have dropped steadily and the number of liability cases has also declined dramatically.  South Carolina reports a reduction in cases filed and a decline in the rate of increase in liability premiums since reforms were passed last year.  The impact is less clear in Florida where there is considerable concern that the reform measures could be overturned by the state Supreme Court.

While it would seem logical that the special liability measures that have been enacted to protect emergency care providers would have a favorable impact on the number of cases filed, the amount of awards and the cost of insurance premiums, such results can often take years to realize.  In the meantime, successful chapters have found that the effort doesn't stop with legislative victory.  Vigilance and ongoing action are required to protect these hard-won provisions from legislative and judicial efforts to overturn them.

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