newtaxblog.com

By and large, most attorneys when analyzing their would-be malpractice cases just look at clinical violations in the application standard of care and if they are causally associated to a bad outcome.What many fail to recognize is that there are two other potential causes of actions that also should constantly be analyzed in each of their cases.  The first is the Emergency Medicine Treatment and Active Labor Act (EMTALA), or the anti-dumping act, and the second is HMO or Medical Insurance Bad Faith.

EMTALA is a federal law requiring each patient to have a medical screening exam to establish if they have an emergency medical condition and to stabilize the patient prior to transferring, admitting or discharging the patient from the Emergency Department apart from the insurance status of the patient..If an attorney decides to file a federal EMTALA claim, the federal rules of evidence permit the plaintiff attorney access to the usually off limit peer review material which then may be used in the State medical malpractice action.  If the case went under hospital peer review, the federal EMTALA action will allow a plaintiff attorney to see and introduce into evidence the peer review information in their State malpractice action, which was obtained in federal court.

Bad faith issues relate to system problems (denials or delays in medically necessary care or benefit determinations, credentialing issues, inappropriate) by HMOs, medical insurance companies or medical groups (IPAs) they contract with.If a patient fails to receive timely medical care or that care was limited or inferior in any manner by the “system,” then a plaintiff attorney could file a bad faith case, which could result in punitive damages.  Credentialing issues may also be involved in bad faith actions.Such as, if the HMO or IPA performed shoddy credentialing and then the provider committed negligence, the plaintiff attorney could allege that the breach was anticipated and obvious and hold the system accountable.System failures may occur in numerous direct and indirect ways such as deficient credentialing of the hospital, doctors or emergency department that patients are directed to.  It may occur when health care plans encourage their beneficiaries, i.e. patients to call their help/nursing/information line prior to seeking medical care.These information ranks are filled with risk, essentially having nurses without being aware of or seeing the patient making medical diagnoses over the phone and directing treatment.

Both Plaintiff and Defense Attorneys need to analyze any contracts that hospitals may have the HMOs, Medical Insurance Companies or their medical groups (IPAs) to see if there are financial incentives that corrupt medical decision making or in the credentialing process of health care providers.

In filing a bad faith case both defense and plaintiff attorneys must recognize if it ERISA pre-empted.  If there is ERISA pre-emption then one can file a malpractice law suit against the HMO, IPA or medical insurance company based not on a health care plan violation or a benefit denial, but based on the plan providing poor quality of care.In this fashion, there may not be MICRA margins on damages and the case is not sent to federal court.

Both plaintiff and defense attorneys must appreciate these two potential causes of actions in each of their typical medical malpractice law suits so as to accurately speak for their clients.

The author of this article is an Emergency Medicine Quality Assurance Bad Faith Expert Witness.  This Legal Medical Expert Witness can be reached for Medical Expert Witness Testimony through this Expert Witness Services Company. See all Legal Medical Expert Witness Specialties and view full C.V.'s of Legal Medical Expert Witnesses online. This is a free service.

Tags: EMTALA, Expert Witness Services, medical malpractice, Patient Dumping