Legal muscle in the doctor's corner
■ The Litigation Center of the AMA and State Medical Societies is the medical profession's wide-ranging advocate in the courts.
Posted April 21, 2008.
Physicians are perhaps the most litigation-wary among professionals, and yet there are times when a trip to the courtroom is unavoidable. Sometimes this venue offers the most effective way to protect the practice of medicine and preserve the patient-physician relationship.
On the side of physicians, in roughly 175 cases since its founding in 1995, is a legal collective unique within American medicine: The Litigation Center of the American Medical Association and State Medical Societies. Its mission is "to be an effective legal advocate in representing the interests of the medical profession in the courts by bringing cases of broad impact and by serving as an information and advocacy clearinghouse for medical societies and related groups."
The center's membership has grown to include the medical societies of every state and the District of Columbia and, of course, the AMA. The center is now a fixture on the medical-legal scene. As such, even at this newspaper, we often simply mention its involvement in passing when we cover major legal cases. But the scope and substance of the center's work warrants a special look.
The growing complexity in health care brought on by third-party payment, the legal system, government regulation and other factors has created a long roster of potential flashpoints. These include physician payment problems, hospital-medical staff disputes, peer review, professional liability, scope of practice, tiered networks and abusive litigation against physicians -- and the list goes on.
A key factor in the center's selection of lawsuits is whether the case is marked by an uneven balance of power in the courtroom. Opposing the doctor in an important case can be the legal department and financial resources of a hospital system or multibillion-dollar health plan. It is in those cases where the collective support of the Litigation Center can help even the odds.
In addition to such lawsuits, the center can lend assistance in cases limited to a specific specialty or state. It also can provide appellate and trial courts with briefs that clarify the issues.
In all cases, state medical society support is essential. The center's legal position also must be consistent with AMA policies.
The Litigation Center sometimes is itself a plaintiff. A timely example is the as-yet-undecided Arkansas case of Murphy v. Baptist Health. It is an economic credentialing lawsuit that revolves around physicians deemed ineligible for staff privileges based on an ownership interest in a competing hospital. In this instance, the center joined the physicians as plaintiffs and took part in a two-week trial just last month. The judge is expected to rule by this summer.
Another high-profile, ongoing case is American Medical Association v. United Healthcare, which was filed in 2000. The AMA and two state societies have challenged United on whether it has rigged its database information in setting the "usual, customary, and reasonable" fees paid to out-of-network physicians or for patient reimbursements. New York Attorney General Andrew Cuomo recently announced that his office is investigating the same basic issue.
Most of the time, though, the center is not a plaintiff but provides support, either financially, in the form of expert advice, or through a friend-of-the-court brief. Whenever possible, a prime goal is to select cases that not only help the physicians directly involved but also have precedent-setting value that will resonate in future legal actions. Other times, settlements bring closure to the case at hand and serve as a model for resolving future disputes.
Still, even with the center's efforts, not all cases will have the desired outcome. Such is the inherent uncertainty of the legal system. But doctors and patients alike will be well served when physicians remain willing to take a chance in such efforts -- and doubly so when the litigation center is there to support them.