Focus, Health Care, and Law

Doctor shortage linked (maybe) to malpractice suits

November 15, 2013
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LANSING — There is consensus that a statewide doctor shortage exists in some specialties, but how to fix the problem is contentious.

Some physicians suggest that making it more difficult to sue emergency room doctors and hospitals for medical malpractice will encourage recruitment, while plaintiffs’ lawyers say it all comes back to money, and immunity from malpractice suits would cause more problems than it would solve.

States with onerous liability laws “have a difficult time attracting physicians in general, especially those physicians who may have higher exposure like the obstetricians, neurosurgeons and emergency docs,” said Kenneth Elmassian, president of the Michigan State Medical Society.

A bill working its way through the House would raise the bar for suing an emergency room doctor. A plaintiff would have to prove by clear and convincing evidence that the physician was grossly negligent — meaning a conscious disregard for the patient’s welfare.

Current law sets the standard of proof to show negligence at preponderance of the evidence, which means that the allegation is more likely to be true than not.

Officials from the Michigan College of Emergency Physicians argued at a recent House Judiciary Committee meeting that the legislation would attract more emergency room doctors to the state.

They cited similar moves by Georgia and Texas in the past few years. The American College of Emergency Physicians gives both of those states grades of A for their medical liability laws, but for access to emergency room care they received Fs. Michigan received a D- in both categories.

“What they’re saying is not far from the truth,” Elmassian said of the MCEP’s argument. “It’s one way of trying to embellish the law by trying to do whatever you can to get it passed.”

Michigan State Medical Society supports the bill.

Plaintiffs’ lawyers told the Judiciary Committee there must be a better way to attract more emergency physicians than shielding them from suits.

Donna MacKenzie, a Berkley attorney and an executive board member of the Michigan Association for Justice, said it’s a matter of dollars. To get more doctors in the state, they need to be paid better.

She added that malpractice insurance companies will be the real beneficiaries if it becomes more difficult to sue. Recently, the number of malpractice cases has decreased, but premiums have not, she said.

According to the Michigan Association for Justice, malpractice filings are at a 30-year low, with 700 to 800 in both 2011 and 2012 statewide.

At the Alpena Regional Medical Center, there’s no shortage of emergency room physicians, said Gary Mutch, the hospital’s physician practice administrator. What it needs are primary care doctors. To recruit them, he said the hospital pays generous salaries, provides loan repayment programs and promotes the advantages of living in a rural area.

He said the hospital has been successful in recruiting for all surgery specialties, and low malpractice premiums, which reflect the low likelihood of being sued, could have something to do with that.

Rep. John Walsh, R-Livonia, is the bill sponsor. Co-sponsors are Reps. Martin Howrylak, R-Troy; Gail Haines, R-Waterford; Lisa Posthumus Lyons, R-Alto; and Joel Johnson, R-Clare.

The bill has had one hearing, but the committee hasn’t voted.

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