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Bill protects ER against lawsuits

By Jim Saunders
3/4/2010 © Health News Florida

Reopening a political battle about medical malpractice, Florida senators are considering a bill that would limit the liability of hospitals, doctors and other workers for emergency-room errors.

The Senate Health Regulation Committee voted 5-2 this morning to approve the bill, which is sponsored by Sen. John Thrasher --- an influential figure who also doubles as chairman of the Florida Republican Party --- and is backed by groups such as the Florida Medical Association and Florida Hospital Association. 

The bill would extend what is known as "sovereign immunity'' to hospital emergency rooms. Sovereign immunity, which normally applies to government agencies, restricts payouts to injured people or their families to $100,000 or $200,000, depending on the circumstances.

Thrasher, a St. Augustine Republican, said he is concerned that hospitals have difficulty getting physicians in high-risk specialties, such as neurosurgery and orthopedic surgery, to work in emergency rooms. He said lawsuit protections would help.

"We need to have access to these folks,'' Thrasher said.

But limiting medical-malpractice lawsuits has long been a divisive issue in the Capitol, with trial attorneys already vowing to fight Thrasher's bill.

Republican Sen. Durell Peaden, a Crestview physician who is a top lawmaker on health issues, also said he has qualms about the proposal to limit damages.

"Mistakes are made. You can't totally disregard what happens,'' said Peaden, who does not serve on the Health Regulation Committee but is the Senate's health-budget chairman. "You've got to be fair to everybody on that issue.''

Lawmakers filed similar proposals to extend sovereign immunity to emergency rooms the past three years, but none of the bills passed committees. The issue could gain momentum this year, however, because of the backing of Thrasher --- who won election to the Senate in 2009 after a nasty campaign that included attack ads financed by trial lawyers.

The debate also comes as congressional Republicans call for including medical-malpractice limits in a federal health-reform bill.

The Legislature had a full-blown debate about medical malpractice in 2003 and passed a law that included some liability protections for emergency-room doctors. As an example, the law placed limits of $150,000 or $300,000, depending on the circumstances, on what are known as "non-economic damages'' that compensate victims for pain and suffering.

Also, public hospitals already have sovereign-immunity protections in lawsuits.

But Thrasher's bill would go much further, extending the sovereign-immunity limits to emergency rooms at all hospitals that provide emergency care. Along with doctors and hospitals, the bill would extend the limits to workers such as paramedics and nurses, Pensacola medical-malpractice attorney Marcus Michles said.

Michles agreed that getting specialists, such as neurosurgeons and orthopedic surgeons, to work in emergency rooms is a problem. But he disputed the contention that granting sovereign immunity would attract them.

He said doctors in the past needed hospital privileges and, as a result, would be on call for emergencies. But he said they now can operate at surgical centers without the inconveniece of getting called to the ER.

"Twenty years ago, there was no such thing as an outpatient surgery center,'' said Michles, who is chairman of the medical-malpractice committee of the Florida Justice Association, a statewide trial lawyers group.

A report issued last year by the state Office of Insurance Regulation indicated emergency rooms are the third most-frequent source of medical-malpractice lawsuits. The report examined malpractice claims closed in 2008 and found 436 that stemmed from emergency rooms --- trailing hospital-inpatient care and physicians' offices.

Sovereign immunity is designed to shield government agencies from expensive lawsuits. By extending it to emergency rooms, lawmakers effectively would give the same liability limits --- $100,000 per claim or $200,000 if there are multiple claims from an incident --- to medical providers.

Thrasher, a former general counsel of the Florida Medical Association, said such limits also could help hold down health-care costs. He said emergency-room doctors take extra precautions and practice "defensive medicine" because of the threat of lawsuits, unnecessarily increasing costs.

"That cost is borne by all of us,'' said Tallahassee physician Craig Butler, who represented the Florida Orthopaedic Society at this morning's meeting.

But Senate Minority Leader Al Lawson, a Tallahassee Democrat who voted against the bill, questioned the need to extend sovereign immunity to emergency-room workers beyond physicians. He called the measure "just too broad."

Capital Bureau Chief Jim Saunders can be reached at 850-228-0963 or by e-mail at jim.saunders@healthnewsflorida.org.