Wednesday, March 21, 2007

Unfair and Unbalanced......
Be warned, an ill rant follows.
While no serious threat to tort reform is forthcoming from the Georgia General Assembly this year, some small efforts are being made. An article in today's Macon Telegraph tells the plight of one who is thought to be a "victim" of tort reform: State senators try to retool immunity to ER docs:

Families like the Fretwells seem to be forgotten in the annual turf war between doctors and lawyers in Georgia's Capitol about who should be protected from malpractice lawsuits.

Like others, Rodney and Sherry Fretwell paid scant attention to the state tort reforms approved two years ago, worrying instead about making their next house payment, keeping food on the table and making sure their two young daughters were happy and safe.

But they were soon confronted with one of the least-known provisions of the 2005 law, an obscure section that makes it nearly impossible for patients to win medical malpractice lawsuits against emergency room doctors. Now their story, and others, has prompted Georgia lawmakers to propose retooling the laws and make it easier for alleged malpractice victims to make their case in court.

It started in February of last year, when Sherry insisted that her 39-year-old husband go to the Columbus Medical Center's emergency room so doctors could treat a headache that wouldn't go away after four days and numbness on the left side of his body began to grow.

A doctor there told the burly builder that the problem was likely a pulled muscle, and sent him home with prescriptions for a muscle relaxer and blood pressure medicine.

Within a few hours, Fretwell said his left side was paralyzed. He rushed back to the hospital, but the same physician told him once more he suspected a pulled muscle and sent Fretwell home.

The next morning, he was back - this time, by ambulance. His vision had blurred and his vomiting grew worse overnight. After tests, doctors confirmed he had suffered a stroke.

A month later, the family sought out a lawyer to see if they could sue. They were told if the doctors had originally diagnosed a stroke, they could have treated him with medication to reduce its severity. But the lawyers also said the new state law gives emergency room almost complete immunity from malpractice lawsuits, making a lawsuit a long shot.

Were Mr. Fretwell's physicians negligent? I don't know.
Was Mr. Fretwell an candidate for thrombolysis? I don't know.
If he had received it, would it have made a difference? I don't know.

I also don't know the hospital or physician's side of the story. And unless a suit is filed, I never will. But becuase of privacy rules these allegations are out there and unchallenged. Did the reporter call the hospital for comment? While the hospital may have been unable to do so because of privacy regulations, the reporter could have done so in the interest of fairness. Why is that important? Because such tragic stories attract the attention of those in power:

That could soon change. A bipartisan group of lawmakers, including Republican Senate Majority Leader Tommie Williams, R-Lyons, and Democratic Senate Minority Leader Robert Brown, D-Macon, say they fear the provision goes too far. They back a measure that would scrap language requiring patients to prove emergency room doctors acted with "gross negligence" in malpractice cases, a standard that forces lawyers to prove they knowingly mistreated the patients.
These same elected officials engage in some clever re-branding of the proposal:

The influential group's opposition to the changes is giving the proposal's supporters fits. Republican Sen. Seth Harp, the bill's sponsor, has taken to calling the measure "the physician's protection bill" to smooth over legislators who fear butting heads with the medical association.

He says that the "gross negligent" standard is so fuzzy that malpractice insurers are refusing to cover some ER doctors.

"It's a misfortune," says Harp, a Republican from Midland, a few miles from where the Fretwell family lives. "They're not protecting physicians and we're trying to make sure they have that coverage." The legislation faces a series of hurdles before it reaches a vote, which is why Rodney Fretwell wants legislators to know his story.
Now if that is the case, it's the first I've heard of it. This coming from the senator who voted for the bill because "I was beat, plain and simple. . . . There's no point in riding a dead horse." Who are these physicians who can't get coverage because of the "fuzzy" standard?

The law not only affects EM physicians, but anyone who provides care under these circumstances. The relevant section of the law is as follows:
In an action involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department, no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence that the physician or health care providerĀ“s actions showed gross negligence.
Now what brought his article to my attention was this post at Peach Pundit in which the author states that "the legislature was intent on punishing GATL members than improving the conditions in the state."

I disgagree with that assumption. This provision was designed to soften the EMTALA trap. For those not in the medical field EMTALA stands for the Emergency Medical Treatment and Active Labor Act,or the largest unfunded mandate put forth by the federal government. The trap that requires physicians to provide emergency care to individuals without regard for the ability to pay. As my handful of readers know, EMTALA does not provide any shield of immunity for physicians. So physicians are forced to take on full liability, with no guarantee of payment.
Others have discussed the problems with EMTALA, and others have discussed the tax relief legislation that has been proposed. I myself am in favor of a system in which physicians providing care required by law under EMTALA are immunized like any other government physician.

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