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Republicans again seek total immunity on behalf of medical treaters of ER-admitted patients

For the third time in the past few years, Republican legislators are attempting to pass a bill that would grant complete immunity to any health care provider who gives medical treatment to a patient admitted through the emergency room or the obstetrical suite.  The bill has been soundly defeated in the past, in part because a number of prominent health care systems, the Michigan Medical Society and even the insurance defense lawyer organization all agree that it would make bad law.  When one reviews the facts underlying this situation, you wonder how anyone would have the audacity to sponsor a bill of this nature--and how much "special interest" money it takes to secure repeated attempts at passage.  The facts:

1.  Henry Ford Health System's VP explained in 2012 that the immunity bill had "the potential to work against the best interests of our paitents and would do nothing to foster quality medicine or responsible medical practice."

2. Michigan Defense Trial Counsel, whose members defend ER docs, said "it is difficult to imagine a scenario where the burden [on injured patients] could be met...we oppose [the bill]" as it requires the victim to prove that a medical professional acted in a manner such that he or she did "not care one way or the other about the outcome of the patient." The existing rules have "worked well" and "we fail to see why they should be altered."  Passage of the bill "would not be in the best interests of patients in Michigan, nor would it foster improvement of medical care in our communities."

3.  The Oakland County Bar Association's 3000 members oppose the bill because it imposes on victims "an impossible standard" and would "induce sub-standard doctors to come to Michigan to practice, knowing that they would enjoy immunity" for sloppy care.

4. The State Bar's Negligence section (plaintiff and defense lawyers) oppose the bill as poorly drafted and unreasonable.

5.  The former Chief of Risk Management for the Michigan State Medical Society, Julia Pollex,  opposes it for many of the reasons stated above.  "I fear eliminating the threat of malpractice will be disastrous consequence to the people of Michigan."

6.There is no "shortage" of physicians in Michigan:  Michigan ranks 7th in the number of primary care physicians in the nation, trailing only California, Florida, Illinois, New York, Ohio and Texas. "Business is good" for Michigan's 14,397 primary care docs.

7. Michigan ranks 8th, nationally, in total number of doctors, with 29,827.  They are not "fleeing the rust belt."

8.  Michigan ranks 7th in the nation for the number of O.B. Gyns, and 5th nationally for practicing ER doctors.

9.  In Michigan, after several rounds of "tort reform," malpractice filings are already at a 30 year low, having dropped by 80% between 1986 and 2010. Between 700 and 800, total,  have been filed in all courts during each of the last three years, at a time when Medicare and Harvard Medical School statistics show that hospital negligence is a major cause of negligent injury and death.

10.  Among medical specialists, ER doctors are less likely to be sued than most other specialists (according to studies conducted by Harvard Medical School and Massachusetts General Hospital) and compensation awarded for similar bad outcomes is smaller on average.

11.  Between 1991 and 2006, with the adoption of "caps" on damages and other "reforms" limiting physician exposure, indemnity payments to wrongfully injured patients dropped by 59%.  With fewer cases to defend, but more "reform" ammunition to expend, defense costs rose 109% during that period--the only part of the system that became more expensive.  Lawyers with fewer cases and more ammunition charge more to defend fewer doctors and deserving patients are paid less.

12.  Among the fifty states, the average pay-out to wrongfully injured patients in Michigan is 7th lowest at $181,198.00.  The national average of $334,559.00 is almost double Michigan's average.

13.  When negligent actors in well-remunerated professions are granted immunity, obviating the need for and availability of insurance coverage for mistakes, the professionals' errors are instead paid for by taxpayer-funded sources, i.e., Medicare, Medicaid, and uncompensated medical treatment rolled into the hospital billing structure and passed on to third-party payors. A good example is the Attorney General's effort to collect $20 million dollars from Merck to compensate for Medicaid payments caused by the defective drug Vioxx.  Because the Michigan Legislature had granted drug manufacturers immunity (the only state to do so), the Attorney General's lawsuit was dismissed by the Michigan Supreme Court, and ours became the only state where the financial burden associated with Vioxx remained solely on taxpayers.  Again, ours is the only state where this form of immunity passed a legal responsibility from the perpetrator to the taxpayer--thanks to special interest immunity legislation.

14.  Premiums paid by doctors for malpractice insurance are not increasing and remain proportionately much lower than the liability coverage that persons in other occupations must pay. They have been discounted by 19-24 per cent in recent years, according to the Michigan Insurance Commissioner and an officer of ProAssurance (a physician insurer). 

15.  The Risk Manager for the University of Michigan testified that insurance premiums have not fallen even further, in response to the 80% drop in filings and the significant drop in "payouts," because insurance premiums rise and fall with the economy and the profitability of insurance investments.  Changes in patient rights have little to do with insurance company profits or physician premiums.

16.  While malpractice costs represent somewhere between 1/2% and 2% of the cost of health care (depending on whether you take the special interest "reform" advocates' statements as truth), fully ten percent of health care costs are pharmaceutical charges, which Medicare and Medicaid are prohibited from negotiating (a concession to right-wing Republicans in Congress) and which run as much as fifty times the cost expended in other developed countries for the same medications.  To even argue that malpractice expense is a significant component of health care costs, the activists for special interest protection are forced to claim that the burden is not the civil justice system, but rather the practice of "defensive medicine" to which practitioners arguably resort in order to avoid claims.

17.  In our declining economy with fewer and fewer citizens enjoying employment-based insurance--or able to afford private insurance, hospital ERs are now the "point of access" for nearly half of all hospital admissions.  There are almost 11 million hospital admissions in Michigan annually, so about 5 million patients per year would lose any protection they now enjoy from mistakes by doctors, nurses, respiratory therapists, pharmacists, etc., if the bill passes.

18.  According to medical authorities, more than 40,000 U.S. patients suffer preventable harm in the health care system DAILY. The cost of their care is more than 29 billion dollars annualy.  The New England Journal of Medicine, perhaps the most prestigious journal in medicine, estimated that more than 18% of patients suffer injury as a result of health care errors.  The Institute of Medicine found that approximately 98,000 deaths occur annually in the United States, as a result of preventable medical mistakes.

Beware as these facts may make you physically ill enough to need an ER visit:  where the highly-paid professionals may owe no duty to provide you reasonable care.  At any rate, the facts probably do confirm the impact of electing legislators, justices and a governor who are beholden to moneyed special interests, and not to ordinary people.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
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