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Michigan ER Immunity Bill Introduced

By: Eric Steinberg Eric Steinberg
May 3, 2012

Well, the ER immunity bill has finally arrived within the smoke filled chambers of the Michigan State Senate. Many attorneys thought this bill would arrive last fall, but it has come none the less.

The bill, as expected, is a catastrophe. Basically it says that no doctor or “licensed health professional” can be sued for malpractice for treatment derived from an emergency room located in a hospital, an obstretical unit, radiology department or cardiac catheterization lab unless the plaintiff can prove by clear and convincing evidence the doctor’s actions were grossly negligent.

Proving gross negligence by clear and convincing evidence based on current Michigan law is next to impossible. The injured person will have to prove the doctor acted with willful and wanton disregard for the patient, and will have to do so with clear and convincing evidence, a much higher standard that the preponderance of the evidence standard used is almost all personal injury cases.

This bill will basically eliminate all Michigan medical malpractice cases that go through the ER. It will eliminate malpractice cases that move from the ER to other clinics within a hospital, such as the radiology department.

And that’s exactly the point. The 4 co-sponsors, all very conservative state senators, want to take away access to justice for injured persons and their families to protect their favorite constituency, insurance companies.

The usual arguments will be made by proponents of the bill. It will prevent the outflow of doctors leaving the state (not true, in fact the number of doctors in Michigan is at an all-time high). It will get rid of defensive medicine (like this is a terrible thing). It will create jobs and make Michigan economically competitive (don’t understand that one).

But this is all junk. I was talking to a nurse this morning. She ran the nursing unit for a major hospital in northern Michigan for many years. Very well respected. She told me many ob/gyns are leaving hospitals in northern Michigan. Why? It isn’t because of tort reform and too many medical malpractice claims. It’s because too many patients are on Medicare and Medicaid and the reimbursement rates are so low the hospitals and doctors can’t make any money for provided treatment. For example, Medicaid will pay an ob/gyn for pre-natal treatment, but reimburse little if anything for actual delivery of a baby.

But you’ll never hear that from the media or proponents of the bill. Instead you’ll hear the usual outcry. This is all very unfortunate and self-serving, especially when you consider this bill would already be third or fourth round of Michigan medical malpractice tort reform.

What’s also astounding is who ends up paying for the bill. I mean it’s not like mistakes and negligence in a hospital setting will cease if this bill ever passes. Injuries will still occur. Instead families will look to the state government or federal government for payment, especially those families with poor private health insurance plans or none at all.

That means you and I, the American taxpayer, gets stuck with the bill, while the insurance companies continue to charge outrageous premiums to doctors and collect record profits.

I’m hoping this bill never sees the light of day. It’s a pure give-away to insurance companies. Doctors won’t get protected and it will only pass the buck on to an already financially stressed government.

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