WASHINGTON – With liability reform more or less stalled on the federal level, emergency physicians have been working at the nation’s statehouses to promote legislation important to the specialty.
At a session of ACEP’s Leadership and Advocacy Conference, physicians from three states – Ohio, North Carolina, and Michigan – shared their experiences in developing liability legislation and working to get it made into law. All emphasized the importance of developing a presence in the statehouses and forging relationships with legislators.
Dr. Gary R. Katz, a former president of the Ohio Chapter of ACEP and director of patient satisfaction quality for Premier Physician Services, had several words of warning, as well. Expanding your circle of allies can weaken the focus on protecting against EMTALA [Emergency Medical Treatment and Active Labor Act]-related lawsuits, he cautioned.
It’s also important to know your enemies, Dr. Katz added. When tort reform was being debated in Ohio, a former ACEP Chapter president testified in the state Senate in support of the plaintiffs’ attorneys’ arguments, he said. That was not only unexpected, but it also "took the wind out of our sails," Dr. Katz said.
Ohio passed a wave of reforms in 2003, which helped reduce the number of lawsuits filed. But the Ohio ACEP Chapter argued that EMTALA created a unique situation that still needed to be remedied. In pushing for new legislation, the group decided to shift the focus away from torts. Instead, they argued, the risk of litigation was causing physician shortages and raising costs and, thus, reducing access to care.
In the 2008-2009 legislative session, the Ohio ACEP Chapter copied the language from the Texas tort reform law and found a legislator to sponsor the bill. Other physician groups, including the Ohio State Medical Association, also supported the effort.
The legislation was well received in several committee hearings and was passed by the Senate, but it did not win the vote in the House, Dr. Katz said.
In 2010, the Ohio House was more strongly Republican. "We felt better about our chances," he said. The model legislation was introduced in March 2011 but has not had any hearings yet.
In North Carolina, the battle for liability reform began in 2004 when one of the largest malpractice insurers in the state ceased operations there, said Dr. Gregory Cannon, president-elect of the N.C. ACEP Chapter and a staff physician at the WakeMed hospital system with Wake Emergency Physicians, Raleigh.
It was important to determine the lay of the land – most importantly, that Democrats, who have traditionally opposed liability reform, had dominated the state legislature for more than 100 years, said Dr. Cannon. In addition, the state’s governors had been Democrats for the past 2 decades.
The N.C. ACEP Chapter began working closely with the hospital association and with state medical and specialty societies, Dr. Cannon said. The Chapter also increased its political action committee activities and targeted its contributions on legislators who were supportive. Building relationships with the lawmakers was key, as was educating them with model legislation, Dr. Cannon said.
By the 2010 session, there was a subtle shift in the legislature, as it tilted Republican. A reform bill (Senate Bill 33) was introduced in 2011. It included a $250,000 cap on noneconomic damages and a gross negligence standard for EMTALA-related suits. Eventually, as the bill made its way through the legislature, the cap was raised to $500,000 and the gross negligence standard was removed. Although the bill passed the House and Senate, Gov. Beverly Perdue (D) vetoed it, saying that it did not go far enough to protect patients.
The N.C. Chapter and state physician groups unleashed a lobbying campaign to override the veto and won. The reform law took effect in October 2011. It includes the $500,000 cap, protection for EMTALA-related care, and separate trials for negligence and damages.
Since October, malpractice claims have declined by 30%, said Dr. Cannon, who added that his malpractice premiums have been reduced by 8%.
He said that the physicians learned from the effort that "it’s easier to play defense than offense."
Bottom line: "Wait for your pitch, but once you have it, be ready to hit the ball," he said.
Physicians in Michigan did not wait for a pitch – instead, they made one, using the Georgia reform bill as a model, said Dr. Bradley J. Uren, president-elect of the Michigan College of Emergency Physicians and a clinical instructor at the University of Michigan, Ann Arbor.
But they have not had much success. In part, it’s because there is a perception that the malpractice crisis has passed, Dr. Uren said. Two reform laws put into place in the late 1980s and early 1990s included caps on noneconomic damages that have adjusted upward every year and a shorter statute of limitations. Physicians have to be given at least 6 months’ notice they will be sued, and an affidavit of merit is required.