Help may be on the way in Pennsylvania for providers of emergency health care
Pennsylvania may take a huge step forward in remedying its reputation as a hostile environment for medical providers in the form of legislation introduced by Representative Bryan Cutler (R) of 100th Legislative District of Pennsylvania. This legislation seeks to impose a heightened standard of professional liability attributable to the provision of health care in an emergency situation. Prior to joining Congress, Representative Cutler worked as an x-ray technologist for the Lancaster Regional Medical Center and as a hospital administrator for Lancaster General Hospital. Representative Cutler professes a special interest in protecting the rights of health care providers and health care systems in Pennsylvania.
On April 2, 2014, the Pennsylvania House Committee on Insurance held hearings on House Bill No. 804, which attempts to offer qualified immunity to providers of emergency health care, importing a gross negligence standard in medical professional liability matters. If enacted, House Bill No. 804 would amend the Medical Care Availability and Reduction of Error (MCARE) Act of March 20, 2002, as it pertains to the provision of emergency care in Pennsylvania.
In its current form, House Bill 804 extends protection beyond emergency medicine specialists. The bill currently imports qualified immunity to any health care that is provided before a patient stabilizes by any health care provider in any medical specialty. Qualified immunity would extend not just to the attending physician in the emergency department, but also to the surgeon called in to evaluate a potential surgical abdomen, the cardiologist asked to rule out a myocardial infarction or the obstetrician called in to treat emergent complaints of pelvic bleeding.
This legislation emphasizes the unique manner in which medical decisions must be made in an emergency setting to patients with whom there generally is no pre-existing physician-patient relationship. Emergency providers often make medical decisions without benefit of a patient’s complete past medical history and without access to prior medical records. Moreover, emergency medical providers are not familiar with the conditions that may have caused the need for emergency care. Because of this, House Bill 804 seeks to shift the standard in professional liability matters from ordinary negligence to gross negligence.
Strong support has been offered by the American College of Emergency Physicians, the American College of Obstetricians and Gynecologists, and the Hospital and Healthsystem Association of Pennsylvania, who testified before the House Insurance Committee on April 2, 2014. The Hospital and Healthsystem Association of Pennsylvania estimated that the annual expense of defensive medicine ranges in the “tens of billions of dollars” and maintained that over 40 hospitals in Pennsylvania have shuttered obstetrics practices because of prohibitive medical liability costs.
According to the American College of Obstetricians and Gynecologists, OB/GYN providers often provide emergent care to pregnant patients who have not sought routine prenatal care, or who develop complications when they have traveled away from the hospital where they had planned to deliver. Because time is of the essence, the OB/GYN provider must act in the best interests of the mother and baby, without benefit of comprehensive medical histories and medical records, and should be able to make medical decisions under the protections of qualified immunity from medical malpractice claims.
The American College of Emergency Physicians asserted that House Bill 804 addresses the issues identified by Governor Tom Corbett in his Healthy Pennsylvania plan, wherein Governor Corbett noted, “Defensive medicine and malpractice costs add to rising health care costs, but generate little in terms of improved outcomes or better health care.” The American College of Emergency Physicians maintained that the heightened burdens imposed upon emergency health care providers by President Ronald Reagan pursuant to the Emergency Medical Treatment and Active Labor Act deserve the heightened protections of qualified immunity in medical professional liability matters.
Similar legislation offering qualified immunity to providers of emergency medicine has been enacted in Arizona, Florida, Georgia, South Carolina, Utah and West Virginia.
Case Law Alerts, 4th Quarter, October 2014