By Scot Chadwick
Three years ago I wrote a blog post about PAMED’s upcoming campaign to enact legislation providing expanded liability protection for physicians and other health care providers who are engaged in administering emergency care to a patient. The proposed legislation, modeled on a Georgia statute, would state that in a medical liability action arising out of the provision of emergency care, a provider cannot be held liable for acts or omissions unless it is proven by clear and convincing evidence that the provider was grossly negligent.
The current standard is simple negligence proven by a preponderance of the evidence, so the proposal would raise both the degree of negligence and amount of evidence required in order to support a finding of liability.
Why, I asked somewhat rhetorically, is this needed? The answer, which is pretty much self-evident, is that those who provide emergency care are faced with unique and challenging circumstances.
A treating physician may have no prior relationship with the patient. There may be no medical history to refer to, and the patient may be unable to communicate critical information regarding everything from symptoms to pre-existing conditions to medications currently being taken to life-threatening medication allergies.
Decisions may need to be made very quickly, perhaps in a less than ideal setting. Given those factors, it is patently unfair to hold providers to the same standard of care that applies in more favorable treatment circumstances.
Under our proposal, the court where a malpractice action is filed would have to take the factors outlined above into consideration in determining whether the defendant provider is entitled to the stronger liability protection granted by the legislation. Speaking of courts, the Georgia Supreme Court upheld the Peach State’s emergency care law in 2010, which would hopefully bode well for an expected personal injury lawyer challenge should we pass a similar law here.
In my 2012 blog post, I pointed out that tort reform legislation is always tough to pass in Pennsylvania, and that has proven to be the case with this measure. Since then we successfully enacted the new apology law, but emergency care liability reform remains on our to-do list.
The issue remains a priority for us, and we have a great bill sponsor in Rep. Eli Evankovich (R-Allegheny and Westmoreland counties). The measure has been introduced as HB 1064, and we’ll be sure to keep you up to date on our progress.