Physicians push for liability relief for emergency care

Physicians in several states are lobbying for added liability protections in claims involving emergency care in the hopes of reducing frivolous lawsuits and attracting specialists back to struggling hospital emergency departments.

A bill backed by the Arizona Medical Assn. and passed by the state Senate in June would raise the burden of proof in emergency cases from "beyond a reasonable doubt" to requiring "clear and convincing evidence" of any alleged negligence.

Meanwhile, legislation recently introduced in Ohio would give physicians qualified immunity from lawsuits over care given in an emergency or disaster situation unless plaintiffs first show "willful or wanton misconduct" by a doctor -- a heightened standard that requires proof of intent.

"This is just a recognition that emergency medicine is different than general medicine," said Jeff Smith, director of government relations for the Ohio State Medical Assn. The organization, along with the American College of Emergency Physicians, helped draft the Ohio bill.

"Physicians are thrown into situations where they are expected to make high-pressure decisions without knowing the patient or having any medical history. The unique nature of emergency medicine or providing care in a disaster situation creates the need for a unique application of the liability standard," Smith said.

The movement follows earlier successes in Florida, Georgia, South Carolina, Texas and West Virginia, where similar laws were approved in recent years. Utah in March became the latest state to enact such emergency protections. In 2008, Louisiana bolstered liability protections for doctors and other medical personnel working during declared disasters, except in cases of willful misconduct or gross negligence.

The measures have been targeted by the trial bar over concerns that they grant special protections to physicians and preclude legitimate claims. Trial lawyers have had some recent successes of their own challenging such laws. The Oklahoma Supreme Court in 2008 rejected as unconstitutional a $300,000 noneconomic damage cap that applied in cases involving emergency care.