A handful of states mandate that medical malpractice cases first be reviewed by panels of experts. These panels rule on the merits of a case. They conclude the standard of care was violated or it wasn’t.
In the states that use such panels, such as Indiana and New Mexico, the panel’s decision is not binding. A plaintiff’s attorney can ignore a smack-down and take the case to trial. But, the panel gives a strong signal as to how the winds will blow. Many – but not all – plaintiff’s attorneys take the hint.
An interesting new bill has been drafted. In a sign of bipartisan détente, the bill is sponsored by Congressman Andy Barr (R-KY) and Ami Bera, M.D. (D-CA).
Quoting from the summary of the Saving Lives, Saving Costs Act (H.R. 4106):
- This legislation allows doctors to focus on practicing medicine and improves the quality of patient care by encouraging the use of evidence-based guidelines.
- Physicians who can demonstrate they followed the recommended best practices will benefit from increased liability protection in the form of a legal safe harbor.
- The safe harbor would allow physicians the right of removal to federal court and of alternative dispute resolution (ADR) with an independent review panel of experts.
- If the panel finds the defendant was compliant with the standard of care, the plaintiff would be required to meet a heightened burden of proof if the plaintiff decides to proceed with the case.
- By reducing the necessary practice of defensive medicine and increasing adherence to evidence-based medicine this legislation has the potential to help lower health care costs.
How will such guidelines be formulated? Again, from the summary:
Formation and Standards of the Guidelines:
- Rather than being directed by Washington, the guidelines will be developed by the physician community based on the best available scientific evidence.
- Guidelines should be developed through a transparent process by a knowledgeable, multidisciplinary panel of experts and representatives from key affected groups as recommended by Institute of Medicine’s Standards for Developing Trustworthy Guidelines.
- Professional organizations that have published and maintained clinical practice guidelines are eligible to be certified by the Secretary of Health and Human Services to submit guidelines that will be treated as the standard of care.
Defendant doctors would be able to remove a medical malpractice case from state court to federal court where there is a federal payor, for example, Medicare or Medicaid. Once in federal court, the guidelines would be deemed the standard of care.
More details:
Expert Review Panel, ADR, and Implications for Trial:
- After removal and prior to discovery, the case would be subject to mandatory alternative dispute resolution (ADR). The case would be heard by an independent review panel of three experts. The panel’s decision would not be binding, but its findings would be admissible in court.
- The task of this panel is to render a nonbinding finding with regard to compliance or noncompliance with the standard of care.
- The guidelines are to be treated as the standard of care in ADR, but the panel allows for a human element to weigh each case on its own merits.
- If the panel finds that the defendant was not negligent, the plaintiff still has the right to proceed to trial, but would be required to meet a heightened burden of proof – increased from the preponderance of the evidence to a clear and convincing standard – in order to proceed beyond summary judgment.
In one sense, the legislation would nationalize the expert panels that are currently used in states such as Indiana and New Mexico.
One tricky detail will be who pays for the experts. In Louisiana, for example, the panels are mostly underwritten by the doctors. Most Louisiana panels rule in favor of the defendant doctors. Still, that’s cold comfort given that a significant portion of medical professional liability premiums are allocated to pay for these panels.
The language of H.R. 4106 states cost of compensating panel members will be split evenly between the parties – an improvement over Louisiana’s process.
The bill was introduced in the 113th Congress (2013-2014). The latest action: On March 20, 2014, it was referred to the Subcommittee on the Constitution and Civil Justice.
This sounds great at face value, but I already see the catch.
Panels will not judge based on standard of care but will judge on “evidence based guidelines.” I’m a real skeptic in terms of this, especially in a small field such as neurosurgery. Our “evidence based guidelines” are a joke. There is so little class I evidence. Actually, there is hardly any class II or III evidence either. Even the class anything evidence that has been published is generally lacking, since it always relies on assumptions that are debatable, and it is always unclear that results are generalizable from study subjects to other patients.
There is also the situation of changing evidence. If something is supported by evidence based guidelines in 2016, but the “evidence” is later “proven” wrong, what happens?
Perhaps this is not so much of an issue in larger fields, but I doubt it.
re: Louisiana:
“… that’s cold comfort given that a significant portion of medical professional liability premiums are allocated to pay for these panels.”
Actually, in Louisiana, there are at least a couple routes to liability insurance. The one with which I’m familiar is Lammico–Louisiana medical malpractice insurance company–since that’s where I bought mine when I still practiced there. It was run by doctors–Tommy Grimstead, the president, and I graduated Tulane med together in ’73–and it’s efficient as anything. The last few years, I even got an annual rebate since the cost of doing business was about 10% less than the low rate I was already paying. What percentage of their overhead was for the panels, I don’t know. But it couldn’t have been very much.
I don’t know about the competing company (or companies), but Lammico is probably the lowest common denominator against which to measure the rest.
An issue apparently not discussed or dealt with in this legislation is “mixed specialty participation” and when and if it will occur. Oral and maxillofacial surgeons who are dentists might want to see their own professionals on such committees. Obviously there is cross-over in many circumstances in American medicine, not the least of which is podiatry vs. orthopedic surgery.
Standard of care can vary widely, especially if geographic differences are considered. A family-practice doctor on an isolated US native reservation will face different standards of care than the OBGYN in a major teaching hospital in Boston or NYC.
Finally, we have to assume that the trial lawyers’ lobby considers any manifestation of a “national organization” to intercede in their gravy train to be a true “legal emergency.” Of note is the proposed increased threshold for proof necessary in cases where standard of care has been affirmed. My sense is that they will consider fighting this proviso in the courts as “interrupting the Constitutional Rights of plaintiffs”, even if the results are not binding.
Even as I type this, I would suggest that there are now emergency meetings taking place in various trial lawyer jurisdictions for a well-programmed and financed response.
We all know that Obamacare would never have passed if there were any attempts to limit trial lawyers; and they undoubtedly made that clear to both Obama and Congress. Even if a single Democrat signed onto such a bill, that will not assure the founders of this plan that they can achieve any extended Democrat support.
I predict that such Democrat support will not be found. Trial lawyers will make sure that this will die a quiet and immediate death in any attempt to bring this to a National constituency.
Michael M. Rosenblatt, DPM
Amen. The proposed Federal legislation is necessary primarily because many state legislatures are totally controlled by the legal profession intent on maintaining the status quo no matter what. Notwithstanding this landmark effort, the cautions highlighted by Dr. Schwartz and others are important. As in neurosurgery, my specialty is also devoid of Level I evidence. Where the ACOG publishes much information to guide patient care, there is still plenty of grey zones for which there is no clear consensus. Such is life. Nevertheless, where there is consensus following the guidelines should be an absolute defense.
Payment for this newly proposed system should come from two sources. First, the general public would be charged a small fee collected much like a sales tax paid to human or institutional providers of care. They, in turn, would remit payment directly to the authority in charge in each state for this purpose. Secondly, if the plaintiff pursues litigation and looses in deference to the findings of the medical review panel, a fee is charged to the plaintiff that covers the direct costs incurred by the litigation. This way there is no cost to the defendant or the defendant’s carrier. If one chooses to roll the dice, you must be prepared to lose. After all, there is risk in life and the medical community should no longer be regarded as the financier ad infinitum for such endeavors
Lastly, cases that are settled where a defensible position is documented should not be reportable.
This, my friends, is the only way to control the terrorism
I see this as a huge step in the wrong direction. Here is why. Guidelines that are considered standard of care are often very politically and big money motivated. In Pediatrics for example, the more well visits you do the better and not doing 5 or 6 well visits by 15 months could potentially be considered “not following guidelines”. This despite no proof that doing more of these visits improves health outcomes. We don’t need more government and guideline interventions – it will eventually not be necessary to have an MD who can think – just follow pre-determined guidelines … anyone can do that right?
Standard of care practices are often wrong. If you are ahead of the curve in understanding the science and you know something that is standard of care is actually totally wrong – you will be liable and not have the protections we normally have if this notion of “Nationalized Experts” know best goes through.
It will be very political and to play with the “National Experts” you can bet you’ll have to play nice with big pharma and those holding the keys to the money.