Bill Would Bolster Protection for Doctors Accused of Malpractice

Andrew Kitchenman | February 6, 2013 | Health Care
Attorneys who represent patients worry that legislation would unfairly limit legitimate requests for damages

In a state where one of the nation’s highest rates of successful malpractice claims has resulted in sky-high insurance premiums for doctors, a bill on lawmakers’ agenda today would boost protections for physicians.

Supporters of the measure, A-1831, argue
that an increase in the number of patients and the rise of team-based medical care is increasing the need for additional curbs on malpractice suits.

New Jersey ranks sixth in the nation in the number of successful malpractice suits.

Attorneys who represent victims of malpractice are concerned that the bill would dilute accountability and contend that there is no evidence that the legislation is even needed.

The bill is sponsored by Assembly Herb Conaway Jr. (D-Burlington), chairman of the Assembly Health and Senior Services Committee, which is scheduled to hold a hearing on the legislation Thursday. Conaway is a family doctor.

The bill provides three different protections to doctors, including requiring that plaintiffs in malpractice lawsuits provide the names of all of the defendants in a lawsuit at least 120 days before the start of the trial; granting immunity from civil damages for doctors who volunteer and are paid to respond to an emergency in a hospital; and prohibiting malpractice insurance companies from raising doctors’ rates based solely on the doctors being named in a malpractice lawsuit, rather than being found guilty.

The requirement that plaintiffs name all of the defendants stems from a legal technique used in many malpractice lawsuits in which the defendant doesn’t know the name of all healthcare providers involved in the alleged malpractice. They instead use “fictitious” names for some of the doctors until they can identify them by their true names

Physician groups have expressed concern that doctors currently can be named right up until to the starting date of a trial.

While the state’s largest doctors group, the Medical Society of New Jersey, supports the general concept behind the bill, it hasn’t taken a position on this provision. The organization does support requiring that doctors be given more notice.

“The ability to receive notice and to be heard on your answer makes sense,” said Lawrence Downs, society president.

Downs said that it would be more fair if doctors were given more time to respond in cases that can take four or five years to resolve. He also said that requiring that all of the doctors to be named earlier in the process could speed up the entire legal process. “It would be good for doctors and” for injured patients, Downs said. Downs questioned whether the 120 days notice before a trial is enough time to allow for due process.

Scott Leonard, president of the New Jersey Association for Justice, said plaintiffs should be given whatever time needed before trial to identify who committed malpractice. He said that providers could withhold information that is needed to identify all of the doctors until after the 120-day period requirement has expired, hindering a lawsuit.

“On the eve of trial or a month before trial, they say it’s really not those doctors (named in the suit), it was another doctor – they’re the ones who really committed the malpractice,” Leonard said. “That’s what our concern is.”

The second provision would extend a grant of immunity from civil liability to doctors who do not already have a relationship with a patient who volunteer to treat the patient during a life-threatening emergency at a hospital or other healthcare facility. While such liability protection already exists for doctors who aren’t paid for the service, this provision would also grant it for doctors who are paid.

Downs said the Medical Society of New Jersey supports this provision.

“We want to create incentives for physicians to run to the aid of others when they’re in emergency situations, whether they’re in the hospital or not,” Downs said.

But Leonard objected to this provision.

“We think it’s bad public policy to shield individuals or these hospitals from accountability and responsibility and allow them to sidestep their legal and moral accountability to their patients and to the public,” he said.

The final major provision of the bill would limit medical malpractice insurance companies from increasing the rates of doctors who are sued for malpractice before the case is resolved. Downs also supports this provision, saying that a doctor who has been paying insurance premiums throughout his or her career shouldn’t be punished for a lawsuit in which they may ultimately be exonerated.

Downs said malpractice claims are likely to increase as the 2010 Affordable Care Act is implemented.

He said that as the healthcare system moves toward the team-based care that’s encouraged by the federal law, each doctor in a team must be protected from feeling the need to order separate tests due to liability fears.

“We need to have our legal system understand that we need to have cost drivers of defensive medicine weeded out of the system,” Downs said.

Downs also said that as the number of doctors increases in order to treat additional newly insured patients, New Jersey will be in competition with other states to lure those physicians here.

“New Jersey will be in hot competition to attract newly minted doctors,” Downs said, adding that the state’s higher cost of doing businesses, combined with the tort climate, will prove challenging.

This position was emphasized by AnnMarie McDonald, spokeswoman for the tort-reform advocacy group the New Jersey Lawsuit Reform Alliance.

“This could become a severe access to care issue if this is not addressed,” she said.

She noted a 2010 New Jersey Council of Teaching Hospitals task force report that recommended improving the practice environment by “promoting a less malignant medical malpractice environment.”
But plaintiff’s attorneys are skeptical that the doctor’s advocates have any proof to back up their claims.

“We think the Legislature should be more focused on preventing medical errors,” said Leonard, citing an Institute of Medicine estimate that 44,000 to 98,000 deaths due to preventable medical errors occur each year.

Leonard added that New Jersey’s competition with other states for doctors has nothing to do with malpractice laws.

“We’re fortunate we have great medical schools in our state and many doctors take jobs in other states because of opportunities there,” Leonard said.