From the Blog

January 4, 2012

Medical Malpractice Relief: Sovereign Immunity in the Emergency Room

Written by: Jonn D. Hoppe

For the fourth time since 2008, legislation has been proposed in both the Florida House and Senate to extend sovereign immunity coverage to physicians providing medical services in hospital emergency rooms. Senate Bill 614 and its companion, House Bill 385, would classify a physician providing emergency medical services as an “agent of the state”, thus allowing the physician to invoke sovereign immunity and cap the damages from his or her malpractice at $200,000 per claim. Any physician who takes advantage of this protection is required to repay the State for any judgments and costs incurred. The legislation only affects physicians providing services in non-governmental hospitals, since sovereign immunity is already available to state and county-run hospitals and their employed physicians, as well as physicians affiliated with state universities.

Other states have adopted legislation protecting physicians from errors in the ER. However, it appears that Florida is the only state attempting to provide that protection under the umbrella of sovereign immunity.

Is the Fourth Time the Charm?

Previous attempts to adopt this legislation never made it out of committee, so why is there such persistence on this issue, and does the 2012 version have a higher likelihood of passage? Proponents of the legislation insist that it will reduce utilization of ER services, reduce malpractice premiums, and encourage more physicians to provide call coverage in an ever-decreasing pool of specialists. Most likely, there would be a significant reduction in the number of ER malpractice cases filed. State records show that the ER ranks as the third most common source of malpractice claims, and comprises 12.6% of all malpractice cases filed in Florida.

The bill’s critics maintain that malpractice premiums in Florida are the lowest they have been in 30 years and that ER physicians are already granted sufficient protection under a law passed in 2003 which limits their exposure on non-economic damages to $150,000. Additionally, they claim that when physician accountability is removed, the care provided will get worse as certain incentives for safety are removed. From the physicians’ standpoint, since the State becomes the defendant, they will lose the opportunity to select defense counsel of their choice and possibly the ability to object to strategies and settlements. Similarly, any judgment will not be counted against the “Three Strikes and You’re Out” constitutional amendment, since the State, not the physician, is liable.

Although prior versions of this legislation have sought to extend sovereign immunity to non-professionals, hospitals, and ambulance companies providing emergency medical services, the 2012 version strips those providers from the bill and is only applicable to physicians. At this time, it is unknown whether that will be enough to narrow the scope of the bill and get it passed. However, the House version of the bill was approved by the Civil Justice Subcommittee by a 10-2 vote on December 9, 2011. Interestingly enough, in the past, votes on this have not been divided along party lines. Many proponents hope that legislation passed in the 2011 legislative session which granted sovereign immunity to certain physicians working at Jackson Memorial Hospital and Shands will provide momentum for passage of this bill.

Even if it does not pass in 2012, it’s unlikely this will be the last we hear on this issue. Many experts believe that the federal health care reform law will increase ER utilization, making the need for increasing access to care a hot topic – whether through reimbursement, malpractice protection, or other incentives.