Litigation center provides another form of advocacy

A message to all physicians from the chair of the AMA Board of Trustees, J. James Rohack, MD.

By J. James Rohack, MDis senior staff cardiologist at the Scott & White Clinic in Temple, Texas. He was AMA president during 2009-10 and served as chair of the AMA Board of Trustees during 2004-05. Posted Jan. 3, 2005.

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When I talk about how our AMA advocates for physicians, patients and the medical profession, most members assume I mean our lobbying efforts in Congress, the White House and federal regulatory agencies -- and often they're right. However, there is another forum that is just as important to physician advocacy: The Litigation Center of the American Medical Association and the State Medical Societies.

This coalition, with members from every state medical society as well as our AMA, was founded in 1995 to represent the medical profession in the courts. Today, the Litigation Center has assisted physicians and medical societies across the nation on a range of health care issues.

The center has supported legal efforts to reform an abusive tort system, change unfair payment practices, ensure medical staff independence, limit tobacco use and protect patient access to care -- among other hot-button issues.

Depending on the case at hand, the center offers legal advice, participates or takes the lead in litigation, provides financial support and/or files "friend of the court" briefs.

Whatever course it chooses, the center provides crucial legal and moral support to embattled physicians, patients and medical societies, reminding everyone that we are all stronger when we stand together.

This has certainly been the case in Oklahoma, where the Litigation Center has supported a lawsuit against the Oklahoma Health Care Authority (OHCA), which oversees the state's Medicaid program. The lawsuit contends that Oklahoma's Medicaid program violates the "equal access" provision of the federal Medicaid law.

How so? Medicaid payments in Oklahoma are so low that most of the state's physicians cannot afford to participate in the program. Reimbursements simply don't cover the cost of providing care. In addition, bureaucratic barriers, such as complicated forms, deter patients from participating in the program -- even when they are clearly eligible.

These problems are having a particularly negative impact on Oklahoma children who are Medicaid-eligible, many of whom can't get the care they need.

These children inspired the Oklahoma Chapter of the American Academy of Pediatrics, the Community Action Project of Tulsa, and a handful of patients to file suit against OHCA.

The plaintiffs contend (and the Litigation Center agrees) that Oklahoma children on Medicaid receive substantially less care than other children do -- which is a far cry from federally mandated "equal access." Even OHCA's own chair agrees with the heart of the plaintiffs' arguments. As he told the Tulsa News, "We've got to solve the access problem ... the pediatricians have a point."

This past summer, the case -- now a class-action lawsuit -- went to trial. While the court has not yet issued a final ruling, the Litigation Center is proud to have supported the plaintiffs and helped the physicians of Oklahoma help their patients. Because that's what the AMA -- and all of organized medicine -- is all about.

We are similarly proud of the Litigation Center's support of three physicians who requested the Florida Medical Assn. to investigate the expert testimony of another physician -- and were sued for their efforts.

These three physicians had recently been involved in a medical malpractice lawsuit. During their trial, a physician provided expert testimony for the plaintiff.

Despite the expert testimony, the court found that the physicians were not liable for any negligence. The exonerated physicians could have returned quietly to their practices. However, they recognized their ethical obligation to do more than just walk away.

The physicians believed that the testimony at issue fell below reasonable standards. They contended that it had been given "for the sole purpose of propagating a frivolous suit for financial gain."

Under the auspices of the FMA's peer review program for expert witnesses, the physicians requested the association to examine the testimony that the expert witness had provided, and -- if appropriate -- to ask the Florida Board of Medicine to discipline him.

In response, the expert witness sued the FMA -- and the three physicians. He asserted that FMA's peer review program aimed to intimidate and deter physicians from "appearing as expert witnesses on behalf of plaintiffs in cases involving medical malpractice."

But the lawsuit's likely purpose was to punish the physicians, as well as FMA, for daring to take action.

When it learned about the case, the Litigation Center contributed to the defense costs of the three beleaguered physicians. By lending its support, the center reduced the harm done to these doctors -- and stood up for all physicians trying to uphold the ethical obligations of our profession.

For the AMA Litigation Center, it's all in a day's work.

Since its founding, the Litigation Center has been involved in more than 100 cases such as these, ranging from administrative proceedings to cases before the U.S. Supreme Court. At any given time, the center is actively supporting about 25 cases.

The Litigation Center selects its cases under a carefully established protocol, thus ensuring that each case is critical to the medical profession, with precedent-setting value.

A 10-person executive committee, comprised of eight representatives from the states, an AMA trustee and an AMA staff attorney, help to ensure that the Litigation Center supports the most critical cases.

In 2004, medical societies from all 50 states and the District of Columbia, as well as our AMA, were members of the Litigation Center, paying annual dues based on the number of members in each society. Thus the Litigation Center of the American Medical Association and the State Medical Societies is a shining example of how together, we can and do shape the future of medicine.

Because, together we are stronger.

J. James Rohack, MD is senior staff cardiologist at the Scott & White Clinic in Temple, Texas. He was AMA president during 2009-10 and served as chair of the AMA Board of Trustees during 2004-05.

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