As I was going through the listings and hashtags on my TweetDeck yesterday, I came across this tweet from a report in a Tennessee online publication - Emergency doctors back bill redefining malpractice | tennessean.com | The Tennessean. While I don’t practice in Tennessee, any trend in legislative changes affecting a patient’s right of access to the legal system is on my watch list.
Here’s the essence of the proposed legislation according to this article:
Under the bill filed last month, the definition of medical malpractice would be changed from “negligence” to “gross negligence,” which would raise the bar for mistakes that could trigger a lawsuit.
To put this in context, Maryland and the District of Columbia, where I am licensed to practice, have many times defined “gross negligence.” Those definitions are precisely what caused a chill to run up and down my spine when I saw the proposed change to Tennessee’s malpractice law.
In Maryland there is legislation called the Good Samaritan Act and the Fire and Rescue Company Act, which essentially provides in relevant part that in an emergency setting, only extraordinary or outrageous conduct by a person giving assistance or medical care in an emergency, or by a member of a fire company or rescue company, can be termed “gross negligence.” For the lawyers among you, see, e.g. McCoy v Hatmaker, 763 A2d 1233 (2000).
In the District of Columbia, one case that gives multiple but somewhat common definitions for ’gross negligence is D.C. v Walker, 689 A2d 40 (D.C. 1997):
[Gross negligence is] [t]he failure to exercise even slight care,” and “such negligence as would shock fair-minded men.”Shea v. Fridley, 123 A.2d 358, 363 (D.C.1956). Similarly, the United States Court of Appeals for this circuit has stated that “gross negligence implies an ‘extreme departure from the ordinary standard of care.’ ” Wager v. Pro, 195 U.S.App. D.C. 423, 428, 603 F.2d 1005, 1010 (1979). We have applied Maryland law to define gross negligence in the driving context as “a wanton or reckless disregard for human life or for the rights of others,” and “indifference to the consequences … [which] implies malice and evil intention.” Hall v. Hague, 257 A.2d 221, 223 (D.C.1969). * * * And our federal court of appeals, applying what it apparently perceived to be District law, has said that, “[t]o constitute willful or wanton negligence, the police actions must involve ‘such reckless disregard of security and right as to imply bad faith.’ ”
And just what is the alleged justification for this ‘gross negligence’ in ER’s standard being proposed? Well here you go:
“In my personal practice, if I knew that I couldn’t be sued except for things that I truly believe I should get sued over, I could eliminate half of my lab tests, two-thirds of my X-rays and 90 percent of my CT scans because all of those tests are done for my protection, not the patient’s,” said Dr. Andy Walker, a local emergency physician and vice president of the Tennessee chapter of the American Academy of Emergency Medicine. “For TennCare patients, of course, the Tennessee taxpayer is paying for that.”
Yeah – that’s my emphasis added to the above quote. Is this doctor kidding? He does twice the number of labs, three times the number of x-rays and ninety percent of the CT scans he orders – to protect himself, not the patient? And his litmus test for getting sued is what? - “… things that I truly believe I should get sued over.” Maybe when the Senate Committee is done investigating the ‘stents controversy’ at St. Joseph Medical Center in Maryland, they can take a look at what’s going on in Tennessee!
Using this wonderful test – “I should only get sued for what I believe is malpractice” – I am pretty confident that there won’t be much medical malpractice litigation concerning ER care in the state of Tennessee should this wonderful piece of legislation go through.
Perhaps I should also make you aware that there is also pending in the legislature of this state a cap on non-economic damages. If you are wondering at what amount they want such damages capped – it’s $1,000,000. Apparently, however, the lobbyists for the medical profession really would like to see such damages capped at $300,000 since they believe such a low figure would “take away the profit motive of trial lawyers.”
I wonder if this double-pronged legislative initiative isn’t a variant on the old shell game. Throw enough legislation out there and negotiate to get at least one of them passed.
Tell you what – I won’t be moving our firm to Tennessee any time soon.