Profession

Tort reform and more; medical issues on deck

A column analyzing the impact of recent court decisions on physicians

By Tanya Albert amednews correspondent— Posted Jan. 12, 2004.

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Will the U.S. Supreme Court peel away yet another layer of ERISA protection and give patients the right to sue their HMOs under state laws?

Will doctors in Illinois gain the right to know the name of the physician who signs the affidavit needed to trigger a medical malpractice lawsuit?

Will medical staffs win their battles against hospitals they say have trampled on their autonomy?

Will 2004 be the year that new state tort reforms are legally challenged?

Now that two major health plans settled lawsuits doctors filed against them for the way they do business, what will happen with the companies still on the hook?

Stay tuned.

Those questions and more are expected to be answered in state and federal courts in 2004.

Here's a primer on what's in the legal pipeline as the new year gets under way.

ERISA

Case: Juan Davila v. Aetna U.S. Healthcare Inc., et al; Ruby R. Calad v. CIGNA Healthcare of Texas
Court: U.S. Supreme Court

For the past several years, the nation's high court has been chipping away at the blanket protection from lawsuits that the federal Employee Retirement Income Security Act of 1974 has given HMOs. This year, the court will consider a question that was at the heart of the Patients' Bill of Rights debate when the issue was before Congress: Can two health plan subscribers sue their HMOs under a Texas law or does ERISA preempt the Texas statute? If the court sides with the health plan subscribers, the decision would bolster 11 states that have laws allowing patients to sue their HMOs when companies deny doctor-recommended treatments.

Health plans argue that opening the door to such lawsuits would further drive up health care costs.

The U.S. Supreme Court is expected to rule next summer.

Knowing your accuser

Case: William P. Sullivan v. David J. DeJong and Associates and Physician John Doe
Court: Illinois 1st District Court of Appeals

Illinois has tried to weed out frivolous medical malpractice lawsuits by requiring that before a lawsuit is filed, a physician sign a certificate of merit validating the medical malpractice claim. But the law doesn't require that doctor to identify himself or herself.

Chicago-area emergency physician William P. Sullivan, DO, is fighting to find out who signed a certificate of merit for a case against him that was dropped before trial. Dr. Sullivan believes the doctor who signed the report should have known that the patient didn't have a case.

And he thinks that physicians who sign certificates of merit should be held responsible in cases like this.

Illinois is one of 14 states that require certificates of merit, but only one of five that doesn't require that the signing physician's name be disclosed.

Disclosure "would be a useful check on doctors who willingly sign affidavits," said James J. Stamos, the attorney representing Dr. Sullivan in the appeal of the lower court's decision not to release the name. "It's a reasonable way to protect doctors from being unfairly accused."

Plaintiffs' attorneys say that disclosing the name could make physicians reluctant to sign certificates and block patients' access to the courts.

Managed care

Case: Managed care litigation
Court: U.S. District Court for Southern District of Florida in Miami; 11th U.S. Circuit Court of Appeals

Aetna and CIGNA HealthCare settled class-action lawsuits with physicians in 2003, but lawsuits against Anthem, Humana, Prudential Insurance Co. of America and WellPoint Health Networks are still intact.

Doctors hope to see similar settlements with those companies in 2004, and the two sides continue to negotiate in good faith, as ordered by the U.S. District Court for the Southern District of Florida.

But the case continues on two other fronts this year. An appeal is before the 11th U.S. Circuit Court of Appeals in Georgia. The health plans have asked the court to reverse the lower court's decision granting the nation's physicians class-action status.

Also, physicians' attorneys continue to press forward with discovery in the case, taking depositions and sorting through documents, said attorney Archie Lamb, co-lead counsel for the physicians. The cases are still slated to go to trial in the summer of 2004.

"The whole key for doctors is whether the rest of the industry is going to adopt the Aetna and CIGNA reforms," Lamb said.

If the companies go to court rather than settle, Lamb said he thinks that it will result in large damages payable to the physicians.

Medicaid pay

Case: Oklahoma chapter of the American Academy of Pediatrics et al. v. Michael Fogarty, chief executive officer of the Oklahoma Health Care Authority et al.
Court: U.S. District Court for the Northern District of Oklahoma

Oklahoma pediatricians are taking the state to task over Medicaid reimbursement rates that they say are at such low levels that doctors are leaving the program because they can't afford to stay in it. That, in turn, is robbing children of access to care and sometimes forcing parents to take their children to other states to see specialists, physicians say.

The pediatricians filed the lawsuit after they were unable to get rates raised through the legislative process.

The lawsuit claims that Medicaid law requires doctors' payments to be "sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area." The case is scheduled to go to trial this year.

Medical staff bylaws

Action is expected next year on a number of cases revolving around conflicts between hospitals and medical staffs -- the result of either the trend toward physicians opening facilities that compete with hospitals or hospitals tightening budgets.

Case: Medical Staff of Community Memorial Hospital v. Community Memorial Hospital
Court: The Superior Court of California, County of Ventura

The medical staff in Ventura, Calif., says the hospital undercut its autonomy when it adopted new policies prohibiting any physicians with a financial stake in an entity that competes with the hospital from voting as a staff member or holding a medical staff leadership position. The doctors also accuse the hospital of giving itself authority to investigate and discipline physicians who don't meet a "Medical Staff Code of Conduct" and of taking over the staff dues account.

The hospital's chief executive officer resigned in October 2003. The case could settle or go to court this year.

Case: Adolf Lo, MD, v. Provena Covenant Medical Center
Court: Appellate Court of Illinois, Fourth District

The appellate court said the hospital governing board had the right to summarily suspend a doctor's privileges without input from the medical staff, and now the physician is appealing to the Illinois Supreme Court. Chances are slim that the state high court will hear the case, but the Illinois State Medical Society and American Medical Association, through a friend-of-the-court brief, argue that this is an important one for the court to consider.

The current decision, they argue, gives hospital boards too much power and infringes on the medical staff's credentialing role. The hospital argues that it needs to act quickly if it believes a patient is in harms way.

The Illinois Supreme Court could decide as early as January whether to hear the appeal.

Tort reform

At press time, no lawsuits were pending in states that have recently adopted tort reform as a way to try to stem the medical liability insurance problems they are experiencing.

But trial lawyers in those states have vowed to challenge them, and 2004 could be the year that those challenges are filed in states such as Florida, Nevada and West Virginia.

Tanya Albert amednews correspondent—

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