In November 2011, I blogged about the Ohio Legislature’s efforts to limit emergency medicine physicians’ liability for committing medical mistakes. If passed, Ohio SB 129 would shield doctors, physician extenders (such as physicians’ assistants and nurse practitioners), dentists, optometrists, and nurses from liability, so long as they are providing care for an “emergency medical condition” as defined by the federal Emergency Medical Treatment and Active Labor Act (“EMTALA”), or acting as a result of a disaster, and are not engaged in willful misconduct. Now, Florida is considering a similar bill capping emergency medicine physicians’ liability.
On Thursday, January 5, 2012, Senator John Thrasher (R. – St. Augustine), introduced SB 1506, a bill that would make emergency medicine providers state agents, thus entitling them to sovereign immunity. By doing so, emergency medicine physicians’ liability for committing medical errors would be capped at $200,000.00. (In those cases where a jury awards more a medical malpractice victim more than $200,000.00, SB 1506 would require the victim to seek the remainder of the damages directly from the Florida Legislature. However, as we know, the current Florida Governor is a Republican, and Republicans control both chambers of the Florida Legislature. Thus, the chances of a Republican-controlled Legislature awarding medical malpractice victims anything above the proposed $200,000.00 damages cap is a long-shot, at best.)
Additionally, SB 1506 would drastically change the burden of proof in medical negligence cases against emergency medical providers. If passed, SB 1506 would require medical malpractice plaintiffs to prove by “clear and convincing evidence that the alleged actions of the health care provider represent a breach of the prevailing professional standard of care in an action for damages based on death or personal injury which alleges that the death or injury resulted from the failure of a health care provider to order, perform, or administer supplemental diagnostic tests.”
Finally, SB 1506 would allow emergency medicine providers’ defense attorneys to conduct ex parte interviews with medical malpractice plaintiffs’ prior and subsequent treating physicians. In other words, if passed, SB 1506 would allow a defense attorney to interview a plaintiff’s physicians without first giving notice to the plaintiff that such an interview was going to be conducted.
Senator Thrasher rationalized this draconian legislation, upon the grounds that emergency room doctors must provide certain basic care and treatment to every person who presents to the ER, and because emergency medicine providers are prohibited from turning away patients, their malpractice insurance premiums are expensive. At the same time, however, Senator Thrasher’s proposed bill needlessly limits medical malpractice victims’ access to justice, and their right to fair and just compensation.
If you, a loved one, or a friend lives in Florida, I strongly urge you to call your State Senator and Representatives, and voice your opposition to SB 1506. By doing so, you can help ensure that the medical care and treatment people receive in their local ER is appropriate. Otherwise, SB 1506 may give emergency medicine providers no incentives to actually improve the care that they render.
Read SB 1506′s entire text here:
http://www.flsenate.gov/Session/Bill/2012/1506/BillText/Filed/PDF
Read more from my previous blog here:
https://gladsteinlawfirm.com/blog/ohio-legislature-considering-bill-severely-limit-medical-malpractice-victims-rights/
