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September 13, 2005
White Paper - Medical Malpractice Damages Cap Legislation
- S-2526 (Bark); A-4080 (Bodine/Chatzidatkis)
NJ-ACEP White Paper
May, 2005
S-2526 (Bark); A-4080 (Bodine/Chatzidatkis)
Legislation that limits non-economic damages in medical
malpractice actions arising from emergency care rendered
in hospitals or other health care facilities at $250,000.
This cap would only apply in cases in which a physician,
surgeon, dentist, nurse or other health care professional
did not have an existing provider-patient relationship with
the injured plaintiff, but did have a duty to act, such
as when an individual arrives in an emergency room in need
of emergency care.
This bill is intended to compliment the "New Jersey
Medical Care Access and Responsibility and Patients First
Act," P.L.2004, c.17, which implemented a number of
reforms relating to medical malpractice tort liability.
One of these reforms expanded the State's "Good Samaritan"
law to provide civil immunity to health care professionals
providing emergency care, while under no affirmative duty
to do so, during a life-threatening emergency within a hospital
or other licensed health care facility, or a State psychiatric
hospital. Under this bill, those health care professionals
required to provide emergency care under similar circumstances
because of an affirmative duty would only face limited liability
concerning any medical malpractice claim, provided there
is no existing provider-patient relationship.
Talking Points in Support of Special Liability Protection
in Emergency Care Cases
- Emergency medicine is an essential public service that
involves unique challenges and circumstances that should
be recognized and addressed in state medical liability
statutes.
- On-call and Emergency physicians must make immediate,
lifesaving decisions regarding diagnosis and treatment
without the benefit of a prior relationship to the patient
and often without any knowledge of the patient's medical
history.
- Emergency departments are mandated by federal law (and
in some cases, similar state laws) to treat anyone who
comes to an emergency department, regardless of the nature,
severity or complexity of their condition.
- Emergency departments treat everyone regardless of their
ability to pay and provide a large and growing amount
of uncompensated and under-compensated care.
- The high-risk nature of emergency medicine results in
escalating liability insurance rates. These skyrocketing
costs coupled with lost revenue from uncompensated care
seriously threaten the future viability of the emergency
care system.
- Many insurers will not write policies for on-call and
emergency physicians resulting in a crisis of availability,
as well as affordability of insurance in many parts of
the country.
- Specialists providing essential on-call services to
emergency patients are often in critically short supply,
due largely to increased liability exposure, higher liability
premiums and reduced reimbursements for providing emergency
care.
- Several other states have recognized the unique needs
and circumstances of emergency care and have enacted special
liability protections for emergency care providers, including
placing lower caps on non-economic damages and requiring
a higher standard of negligence that must be proven in
emergency care cases.
What makes emergency medicine different?
- Emergency Departments (and the on-call and emergency
physicians who staff them) are compelled by federal and
state law to treat every patient who presents at an emergency
room for treatment. This essentially becomes a unilateral
contract. Therefore, the physician, in performing this
essential government function, becomes an arm of the state,
as the instrument of state public policy to provide universal
emergency care.
- While physicians are required to treat all patients,
neither the government, nor the patient, nor the insurer
(if there is one) is obligated to pay for the care given.
- Even though no one is obligated to pay for this care,
patients have unlimited access to the courts for services
delivered in good faith.
- On-call and Emergency Physicians operate in a high complex,
high-risk environment, using rushed procedures, often
late at night. Hundreds of independent judgments must
be made without benefit of the patient's prior medical
history. This puts the physician at greater risk, since
adverse outcomes are more likely to occur even when care
is properly given.
- The Emergency Department remains on the first line of
response to a terrorist attack, especially if it involves
a biological, chemical or nuclear release.
- In every community statewide, the Emergency Department
represents the only universal access to health care for
low-income and indigent patients. Typically, one out of
every three patients seen by an Emergency Physician is
indigent.
- Fewer and fewer specialists, especially those in high-risk
areas such as obstetrics, orthopaedics and neurosurgery,
are willing to go "on call" in Emergency Departments
due to rising malpractice premiums. This means more transfers
and diversions to facilities that may have specialists
on call, threatening patient care.
Action Requested
- Join other health care organizations in support of A-4080/S-2526.
A unified strategy will be to secure to discuss this important
initiative with key legislators and Administration officials,
secure co-sponsors, and obtain a committee hearing to
begin the dialogue.
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