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Malpractice Bill Seeks to Protect ER Docs

This week, the North Carolina state Senate approved a bill making changes to the medical malpractice system. Part of the bill would change the rules for suing emergency room doctors for malpractice. Supporters say it’s necessary to allow doctors to practice more freely in this high risk area. But opponents say it goes too far in limiting access to compensation for people harmed in the E R.

Laurie Saunders never thought she would become a patient advocate. She was a homemaker when her six-year-old son Christopher started complaining one day that he was having breathing problems.

"He had never had any breathing issues in the asthma, and he allergies, and he bronchitis, nothing. He was in the hospital for four days, they diagnosed it as croup."

Saunders’ son was discharged, she took him home and within the hour, Christopher had the same problems. He was revived in the ambulance on the way to the hospital and they arrived in the emergency room. At one point, a doctor removed the boy’s oxygen mask.

": Christopher put up his arms to me as if he was indicating that he wanted a hug, or help, I gave him a hug and… somebody pulled me out of the ER room and the door was shut. And what transpired in the minutes after that, he was in there quite a while, but when they went to intubate him, they were unable to successfully get oxygen in his lungs and he died of oxygen deprivation sustained in the ER room."

Saunders sued. She went to mediation, and settled. Now she runs a patient advocacy organization. That’s why she’s disturbed about provisions in the proposed medical malpractice bill making it’s way through the General Assembly. In addition to setting a cap on non-economic damages for medical malpractice cases (see this story), the bill includes provisions that make it harder for people to sue for harm that occurs in emergency rooms. One of the bill’s senate co-sponsor’s is Democratic freshman Eric Mansfield, from Fayetteville. He’s an ear, nose and throat doctor.

"What we are trying to say is that in an extreme case, not just in the emergency room, not a person just walking into an emergency room with a common cold or an pneumonia, but in a case that fits EMTALA, but for most other people an extreme case where a person has to make a split decision on what to do. All we are saying in the spirit of this is give them the benefit of the doubt."

Mansfield mentions EMTALA – that’s a federal law requiring emergency room doctors to treat and stabilize everyone who comes to their door, no matter their insurance status, no matter what’s happening. Emergency care by definition is high risk and generates many malpractice suits.

"Not that we are trying to immunize them from getting sued, we are just saying that in the extreme cases, gunshot wounds to the chest, person walks then you have a split decision to clamp the aorta or not, you don't clamp the aorta and the patient dies, we don't think it's fair for someone then to walk in and say, well if I had been there I would have clamp to the aorta and this person’s negligent. when it's a split decision. And that's all we are saying. And that’s really been the spirit of that portion of it."

Currently, what happens in an injury or death case is both sides hire experts to testify as to what’s the so-called standard of care, and whether or not the treating doctor was negligent.

"There's no physician whose worth his salt wants negligent physicians practicing because it invariably drives down what people believe about us as general rule as physicians."

But critics of the language in the law say the bill goes too far. Wake County Senator Josh Stein used to be the state deputy attorney general for consumer protection. He objects to language in the bill that sets the bar for suing in the emergency room not at negligence, but quote - gross negligence, wanton conduct or intentional wrongdoing.

"I just read the main case in North Carolina on gross negligence and essentially for you to sustain a case of gross negligence you have to show that the doctor was drunk or was on drugs, it requires a willfulness and intentionality to have reckless disregard for patient safety."

Stein says in his 20 years as a lawyer, he’s never seen a case of negligence that severe. And a ruling of negligence should be based on whether a doctor follows standards of care.

"Standard of care is what all doctors have to… it's what all professionals have to do. Engineers, lawyers, doctors. And when you deviate from that standard of care you’ve committed negligence. Now, this bill immunizes anyone in the emergency room from negligence."

Stein offered an amendment to the bill that would have replaced the gross negligence criteria with negligence but require more evidence. He proposed another with language that would recognize that E R doctors do practice in a unique situation that should be considered in context. His amendments were all struck down.

There’s really no way to know how this bill will affect the ability of patients to seek redress for malpractice in emergency rooms. There’s no precedent for this kind of legal treatment of E R care in any other state, according to Heather Morton, an analyst at the National Conference of State Legislatures. She says there’s similar language in one New Jersey law, but nothing as comprehensive as the bill proposed here.

"That is sort of as a slightly new tack in terms of trying to reduce the med mal cases."

And as the law is written, there’s no mechanism to track whether it restricts patients from suing – even when they are harmed. Senator Mansfield admits that some tracking mechanism should be in the law.

"I would personally say that if you go down the road and I see that there is true evidence that we have some unintended consequences and this is not what we wanted or intended, and there is a lot of room to go back and just say, let’s do this a different way."

But that’s not enough for Laurie Saunders. She says if her son Christopher had ended up in the emergency room under provisions in this law, she never would have learned what really happened.

"It's not until you actually walk the walk and realize that there is a system in place, it has its flaws, but it is there to protect you. It is there to give you legal recourse to find out what happened. And that’s what you have to do… when you suspect there’s medical malpractice, in order to find out what happens, you need to file a lawsuit. What I didn't know is that as a general citizen before this is how hard it is to file a medical malpractice suit."

Saunders says it’s hard to keep track of lawsuits not filed, and it will be hard to know when people are harmed… and left with nothing.

The bill now goes to the House.

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