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Arnold Ahlert / April 9, 2020

Immunizing Healthcare Providers — From Lawsuits

Ambulance-chasing trial lawyers won’t let the pandemic crisis go to waste, either.

“Every dollar spent on the broken medical liability system is a dollar that cannot be used to improve patient care.” —American Medical Association President David O. Barbe, MD, MHA (Master of Health Administration) January 24, 2018, referring to a series of Policy Research Perspective reports published by the AMA

During the most serious medical crisis in modern history, one might be inclined to think overworked doctors and severely crowded hospitals, tasked with making life-and-death decisions under extreme conditions, would be largely immunized from the possibility of enduring the additional burden of litigation.

One would be totally wrong. “Doctors and hospitals overwhelmed in the pandemic will have to make their excruciating life-or-death decisions meticulously or they risk being second-guessed by a jury when the onslaught is over,” Bloomberg News reports. “Lawyers who defend health care providers are already giving advice on how their clients can avoid liability if they’re forced to choose between patients. How they prepare for this battlefield triage now — and how they practice it in the chaos of peak infections — will determine whether negligence cases against them are dismissed or lead to trials or settlements over the death of a parent or spouse.”

Note the key word in the above paragraph: Chaos. Chaos that almost guarantees split-second decisions must be made, even as those same decisions will ultimately be analyzed, scrutinized, and judged in complete leisure.

Based on what criteria? Bloomberg adds, “Health care providers may prioritize patients without underlying conditions who are likeliest to make a full recovery, but there’s no national standard for triage.”

Because there is no national standard, crucial decisions, such as determining who gets ventilators and who has them withdrawn, have forced healthcare providers to develop their own guidelines, which vary from state-to-state and even hospital-to-hospital. A report released last month by the New England Journal of Medicine suggests a number of guidelines, including the ideas that ICU beds and ventilators shouldn’t be allocated on a first-come, first-serve basis, patients whose chances of recovery are better should get access to limited life-saving equipment over those who are sicker, and that healthcare workers serving the sick need to have their healthcare prioritized over everyone else.

But they are just that — suggestions.

“Undoubtedly, withdrawing ventilators or ICU support from patients who arrived earlier to save those with better prognosis will be extremely psychologically traumatic for clinicians — and some clinicians might refuse to do so,” asserted the authors, led by ObamaCare architect Ezekiel J. Emanuel at the University of Pennsylvania School’s Department of Medical Ethics. “However, many guidelines agree that the decision to withdraw a scarce resource to save others is not an act of killing and does not require the patient’s consent.”

Again, many guidelines isn’t all guidelines, and it’s precisely that kind of ambiguity — combined with the gut-wrenching emotionalism attached to any triage decision — trial lawyers will undoubtedly seek to exploit.

This is nothing new. As the first of the aforementioned 2018 AMA reports reveal, 34% of physicians have had claims filed against them at some point in their careers, a number that skyrockets to more than 50% for general surgeons and obstetricians/gynecologists.

Barbe noted that the “vast majority of claims are dropped, dismissed or withdrawn.” The second report supports that assertion, revealing that in 2015, 68.2% of the claims met that fate. Nonetheless, each cost an average of $30,475 to defend.

Do doctors make mistakes? Undoubtedly. But there is a vast difference between errors that occur under normal conditions and those that occur in what amounts to battlefield conditions.

The “solution” for mitigating the chances of being sued? According to Nick Oberheiden, a defense attorney who focuses on healthcare law, documentation is the answer. “The key, in my opinion, is to have clear written policies that do not discriminate or single out certain types of patients based on age, gender, race or any of those unlawful, suspect criteria,” he asserts.

He also warns his clients to have written documentation of every decision they make, including efforts to help those who are ultimately denied lifesaving care. “Where it’s done correctly, it’s not simply the age,” Oberheiden added. “It’s more objective medical criteria.”

Objective according to whom? As previously stated, there is no national standard for triage. Thus the notion that overworked, over-wrought doctors, already filling out paperwork with regard to patient outcomes, should be required to do additional paperwork to avoid exposure to liability lawsuits is utterly absurd.

Regardless, legal machinations are already in play based on dubious precedents. In 2011, Tenet Healthcare paid out $25 million to settle a class-action suit initiated by the families of patients who perished at a Tenet facility in New Orleans during Hurricane Katrina, based on the idea the company did not adequately prepare — for a Category 3 storm that devastated the entire city. Currently, Carmel Shachar, executive director of the Petrie-Flom Center for Health Law Policy at Harvard Law School, asserts that claims could be made against providers based on the idea that they failed to foresee a crisis Centers for Disease Control and Prevention (CDC) and others entities warned was inevitable — despite the inconvenient reality the CDC itself was woefully unprepared for that same inevitability.

Last Saturday, the U.S. Department of Health and Human Services’ Office of Civil Rights also got into the act. They issued a bulletin stating that “persons with disabilities should not be denied medical care on the basis of stereotypes, assessments of quality of life, or judgments about a person’s relative ‘worth’ based on the presence or absence of disabilities or age.”

Again, according to whom? One can only imagine the fiasco engineered by lawyers who would accuse doctors of “playing politics with peoples’ lives” based on such amorphous, but highly political criteria. Do we really want already-stressed medical professionals worrying about allegations of racism or sexism?

“I would expect hospitals to argue that their obligations are to make sure they have adequate equipment in ordinary times, not in pandemic times,” stated I. Glenn Cohen, a bioethics expert at Harvard Law School. “And that seems quite persuasive to me.”

That’s not persuasive enough. What we really need is the very same federal, state, and local politicians who themselves enjoy sovereign immunity — as in immunity from being sued — enacting a series of measures giving healthcare providers dealing with this virus the same protections. That anyone willing to risk their own lives to help others should also have to worry about being sued for efforts made in good faith is repugnant.

In short, “first, do no harm” should be applied as forcefully to the legal profession as it is to the medical profession.

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