Consumer Law

Medical Malpractice Immunity for Florida?s Poor? Could You Be Next?

By Joe Consumer

I was hoping to be a bit more uplifting this Monday morning of a holiday week, but an article caught my eye out of Florida over the weekend that unfortunately made me think about the Holocaust - well, specifically, that famous poem by Pastor Martin Niemöller ?about the inactivity of German intellectuals following the Nazi rise to power and the purging of their chosen targets, group after group.?  It goes:

They came first for the Communists, and I didn't speak up because I wasn't a Communist.

Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist.

Then they came for the Jews, and I didn't speak up because I wasn't a Jew.

Then they came for me and by that time no one was left to speak up.

So I thought I'd better speak up.

Florida is one of those states where the midterms did result in a Republican tsunami.  This is a state where lawmakers have already drastically cut back on the rights of medical malpractice victims. There really is little left to do to patients there, except for the last remaining injustice - immunity.  No lawsuits, no redress, no liability, no accountabilty.  Sure enough, Florida's new powers are now raising the possibility of complete immunity for doctors.  The target?  First, the poor. 

According to the article in the Palm Beach Post, the new legislature is grappling with the fact that ?Doctors participating in Medicaid are not paid enough to treat the poor and there aren't enough doctors, especially expensive specialists, to go around.?

Of course everyone ? even the Florida Medical Association ? admits that low reimbursement rates to doctors is the primary reason for this. But, adds the lobbyist, ?he thought doctors ?are more likely to participate? if they are given immunity from lawsuits.?  That would be no matter how egregious the malpractice and no matter how seriously they hurt someone.  Could be you.  Could be your spouse.  Could be your child, who may require a lifetime of care.

On the table: offering doctors who treat Medicaid patients "sovereign immunity," the same protection afforded to county health departments. Under that proposal, doctors would be considered agents of the state and entitled to the same $100,000 damages cap for each adverse incident as government entities are.

Think that?s far fetched?  Not when you consider that Sen. John Thrasher, the former House Speaker and ?until recently a lobbyist for the Florida Medical Association [is now] one of the legislature's most influential members.?  (That would be Chair of the Senate Rules Committee). 

The paper says that ?doctors perceive Medicaid patients to be a greater risk of malpractice lawsuits? because, among other things, ?Medicaid patients often don't have a primary care physician and wind up in the emergency room for more expensive treatment.? 

First of all, the ER is the place in a hospital where most medical malpractice occurs, according the Institute of Medicine.  So while a greater percentage of patients who are injured or killed in hospitals are probably poor, ?Karen Woodall, a lobbyist who advocates for the poor, said poor people in general file fewer lawsuits because they don't have the resources or education to hire attorneys.  'You could take care of that by raising those rates. Then you take care of the concern you might have that people haven't received proper medical treatment by making sure they get their medical treatment. I mean, hello,' Woodall said."

Here?s another little problem.  ?Letting doctors off the hook for malpractice on Medicaid patients also might violate constitutional due process rights by creating a second class of citizens who don't have the same rights as those who can afford health care.?

So maybe the constitution will stop the ?purging of chosen targets? in Florida.  If not, look out everyone else.  

Full post as published by ThePopTort on November 22, 2010 (boomark / email).