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Normally most attorneys, when analyzing their potential malpractice cases, just look at clinical violations in the application standard of care and if they are causally related to a bad outcome.  What many fail to realize is that there are two other potential causes of actions that also should always 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 determine if they have an emergency medical condition and to stabilize the patient prior to transferring, admitting or discharging the patient from the Emergency Department regardless of 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 does not receive timely medical care or that care was restricted or substandard 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 many different direct and indirect ways such as poor credentialing of the hospital, physicians or emergency department that patients are directed to.It could happen when health care plans encourage their beneficiaries, i.e. patients to call their help/nursing/information line prior to seeking medical care. These information lines are fraught with danger, essentially having nurses without knowing or seeing the patient making medical diagnoses over the phone and directing treatment.

The Plaintiff and Defense Attorneys both need to scrutinize any contracts that hospitals may have with the HMOs, Medical Insurance Companies or their medical groups (IPAs) to see if there are financial incentives that harm medical decision-making or in the credentialing progression of health care providers.

In filing a bad faith case both defense and plaintiff attorneys must know if it was ERISA pre-empted. If there is ERISA pre-emption then one can file a malpractice lawsuit against the HMO, IPA or medical insurance company centered not on a health care plan violation or a benefit denial, but based on the plan providing inadequate care. In this manner there may not be MICRA restrictions on damages and the case is not sent to federal court.

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

The author of this article is a Medical Malpractice Expert Witness. View his and other Medical Expert Witnesses' full CVs at this Expert Witness Services Company.

Tags: emergency health screening health malpractice lawsuit, medical expert witness, medical malpractice, surgery malpractice