American Academy of Emergency Medicine

Missouri Lawmakers Relax Volunteers’ Medical Malpractice Liability

Greetings Dr Walker!

I was encouraged when I saw on your note on the article "Missouri Lawmakers Relax Volunteers’ Medical Malpractice Liability" that AAEM supports redefining malpractice as gross negligence for providers of EMTALA-mandated care. Georgia is a state which has legislated along those lines (see the article on this same issue "Medical Liability and the Emergency Physician: A State by State Comparison - Part 2.)

Emergency Physicians Monthly March 2014 issue published the article "'Gross Negligence': A Slippery Slope for Dubious Expert Testimony" (www.epmonthly.com/features/current-features/gross-negligence-a-slippery-slope-for-dubious-expert-testimony/). Imagine my surprise and dismay when the "dubious" expert witness was identified as Dr. Peter Rosen. I do not know if this is THE Dr. Peter Rosen. However, I believe these physicians' expert testimony should be evaluated by the Academy for accuracy and veracity. If the testimony is found to be appropriate then the article in EP Monthly needs a response. If, on the other hand, the testimony is deemed to be appropriate, then the Academy needs to make at least a statement. Furthermore, if the expert witness is a member of the Academy, then some sort of action needs to be taken. The Academy cannot allow rogue members to sabotage and undermine its strong work.

Your comments on this matter will be greatly appreciated.

Hector Peniston Feliciano, MD FAAEM

Thank you for your letter. I not only enjoy hearing from AAEM members, by contributing your voice you make our Academy stronger and Common Sense a better read. The case you mention is an important one. Obviously important for emergency physicians and others who provide EMTALA-mandated care in Georgia , but important for such doctors across the country because of its implications for fundamental tort reform everywhere. And tort reform doesn't get any more fundamental than redefining malpractice for government-mandated care as gross negligence rather than ordinary negligence. Properly understood and traditionally defined in common law, gross negligence is the kind of mistake all of us would agree is malpractice – the kind of thing an injured patient should indeed be fairly compensated for, and often the kind of thing that should attract the attention of a hospital's Peer Review/Quality Assurance Committee and a state licensing board. While in theory ordinary negligence is defined as behavior that is unreasonable under the circumstances, in reality it is too often defined in America 's courtrooms as any bad medical outcome, even when the medical care in question was perfect. And that isn't just my jaded opinion. Studdert et al. (New Engl J Med 2006;354:2024-33) showed that 40% of malpractice claims involve either no injury at all or no error at all – not just no negligence, but no error of any kind. Yet 16% of no injury claims and 28% of no error claims still result in a payment to the plaintiff, and for the latter those payments average over $313,000. And since that was a decade ago, the average payment is certainly higher now. In practical terms this means that any bad outcome can result in a lawsuit that has a reasonable chance of ending with a payment to the plaintiff  – and that is the problem. That is what drives us to waste untold resources on defensive medicine – tests and treatment designed to protect us rather than our patients.

Caps on noneconomic damgages, which seem to be the most popular tort reform, won't fix that problem. Other reforms, such as expert witness reforms and a "loser pays" rule (known as the English Rule and in effect in every country in the world but the U.S.) might help, but they won't eliminate the problem either. Only redefining malpractice as gross rather than ordinary negligence has the potential to truly correct the problem, and to allow us to practice emergency medicine with the knowledge that we cannot be successfully sued unless we have actually done something wrong.

In the case you cite, news reports (including the article in Emergency Physicians' Monthly that you mention) make it appear that the plaintiff's experts called the defendant emergency physician grossly negligent, when I think most of us would argue about whether he was even guilty of ordinary negligence. If expert witnesses successfully redefine ordinary negligence as gross negligence, this profound tort reform will be completely undone. That is why this case is so important.

AAEM cannot publicly comment on any active case until after the conclusion of litigation. During litigation we can get involved by writing an amicus curiae brief or by offering our own expert testimony. The case has been reported to the AAEM Legal Committee as a possible example of remarkable testimony, and the Legal Committee will evaluate the case to decide if the experts' testimony should be posted on the Academy's Remarkable Testimony website after the conclusion of litigation. As always, if their testimony is deemed remarkable the expert witnesses will be invited to post an explanation of their testimony or rebuttal to the Legal Committee's findings on the same website.

— The Editor

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