Proposal Reduces ER Liability

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LANSING — Hospital emergency rooms may soon become safer for doctors.

A House proposal would raise the standard of negligence needed to hold emergency department physicians liable for medical malpractice.

Emergency physicians often don't have a patient’s history, and they operate in a more hectic environment than other physicians, said sponsor Edward Gaffney, R-Grosse Pointe Farms.

Despite the urgency posed by an emergency, they can be sued for the same type of mistakes as other physicians.

“It seems logical to me that you wouldn't hold them to the same standard,” Gaffney said. “It’s a different world in the ER.”

Under the bill, an emergency physician would have to be found liable for gross negligence to be successfully sued, said Terry Vanderveen, the lobbyist for the Michigan College of Emergency Physicians.

“And that’s much harder to prove,” he said.

The current standard holds that all physicians can be liable for simple negligence, which is the failure to provide ordinary care.

Gross negligence, on the other hand, is conduct so reckless that it demonstrates a complete lack of concern for a patient, said Mark Burton, legislative counsel for the Michigan Trial Lawyers Association.

"This would cause (an automatic) blanket immunity for them," Burton said of the proposal.

Emergency physicians often make quick decisions without much information, which effectively makes their jobs riskier, Vanderveen said.

“Hospitals are having a difficult time finding physicians or specialists to treat emergency situations,” he said. “It’s becoming a bigger problem throughout the country.”

Burton said the trial lawyers’ group opposes the bill for two major reasons: First, Michigan judges and juries rarely find conduct to be grossly negligent, he said. Second, because emergency rooms legally can't refuse to treat a patient, many uninsured patients go to them, Burton said.

“In effect, we create second-class citizens,” he said, because those patients would not have equal access to compensation for medical errors.

Burton also said that there are several problems in the bill, including not specifying how to assess gross negligence, and not defining who is an emergency physician.

Co-sponsors include Mark Meadows, D-East Lansing, and John Stahl, R-North Branch.

The bill is pending in the House Judiciary Committee.

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