Some of those who read this blog live in Arizona. We have no caps on the recovery an injured patient can make, although the legislature has taken away other patient rights in an attempt to make it more difficult for an injured patient to win a malpractice suit. For those of you in other states, many of you are subject to caps on malpractice awards. In those states, no matter how badly you are injured or what the jury awards you, the jury award will be reduced to the cap amount for your state. Some of those caps are only $250,000. Many states are like Arizona and have changed the rules to protect doctors and hospitals. What are patients getting in return for having their rights reduced or taken away completely? The answer apparently is, “Not much.”
Make no mistake about it, doctors, hospitals, and their insurers are a powerful grouping. They are organized. They have money and lobbyists and are not afraid to use them down at the legislature. They are also relentless. If they don’t get everything they want this year, you can be sure they will be back next year. Patients, on the other hand, are the little guys. They are not organized. They are not sophisticated. If they show up at the legislature to testify against a bill taking away their rights, they are demonized. They are called “freeloaders” and “greedy” and willing to harm everyone else so long as they get their payday. Often, the only ones there to speak for them at the legislature are the trial lawyers, who are also vilified. Doctors and hospitals, the healers, against the greedy trial lawyers. Is it any wonder most states have taken away patient rights to protect the medical industry?
The argument that is always made by the medical industry is that doctors and hospitals are being hounded by frivolous malpractice suits. This forces them to practice “defensive medicine” and order tests just so they won’t be sued by some ungrateful patient. The unnecessary tests drive up medical costs for everyone. If we could just limit the suits against these wonderful healers, hospital bills would be lower and everyone would be better off. Except that, even when they get the “reforms” they ask for, tests don’t get reduced and bills don’t go down. Awards and settlements go down, but the savings end up in the pockets of the doctors, hospitals, and their insurers. What a surprise.
Emergency Departments are one of the most likely places for defensive medicine to be practiced, if indeed it is a thing at all and not just a convenient straw man. Doctors there often don’t have a lot of information to go on but they have a wealth of tests they can order for the patients they see. If doctors were going to reduce the number of tests they order after receiving protections from the legislature, the emergency department is one of the places you would expect to see the effect first.
Georgia, Texas and South Carolina all took away patient rights and elevated the level of proof required to hold an emergency department physician legally responsible for his or her negligent medical errors. In these states, the patient must now prove, not just that the doctor was negligent, but that the doctor was grossly negligent, a much higher and more difficult standard. It is very similar to requiring the patient to prove that the doctor intended to injure them.
Researchers from the prestigious New England Journal of Medicine studied a large sample of emergency department visits in Georgia, Texas and South Carolina. They reviewed visits over a number of years from both before and after the legislatures changed the standard for liability looking for changes in doctor practices. They compared the visits in these states with emergency department visits in other states that retained the usual standard of simple negligence. They compared the rate at which CT’s and MRI’s were ordered during the visits, the rate at which patients were admitted to the hospital, and whether emergency department bills decreased or not. These measures should be very sensitive to changes in doctor behavior, if there was any.
Despite the substantial additional protection for doctors in the emergency department, the researchers found very little difference in their behaviors. There was no reduction in the rate of imaging studies ordered, or the number of hospital admissions in the “reform” states. In two of the three “reform” states, there was no change in the medical bills. The one exception was Georgia, which saw a small reduction in per-visit medical charges.
There is only one conclusion which can be drawn from this investigation. The residents of Texas, Georgia and South Carolina had their rights taken away for no reason. The patients who were victims of emergency department malpractice in those states found it far more difficult to successfully bring a case while the other residents of those states did not enter the paradise of lower medical bills they were promised.
Now that this information is out there and available, what do you think are the chances the legislatures of those states will reverse course and restore patient rights to their citizens? If you guessed, not a snowball’s chance in hell, you win.
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