Patient Power

Medical Malpractice? Government Protects Itself

If you are a patient harmed by medical malpractice by a private physician, you can recoup substantial sums for both economic damages and pain and suffering in most states.If you are a patient harmed by the same sort of medical malpractice at a government affiliated hospital or health center, you may not be able to recoup anything regardless of the injuries done to you. State immunity statutes give special protections to physicians who are employed by government entities. They hang private physicians, and their insurers, out to dry.

In Colorado, liability limits for physicians working for the University of Colorado Hospital are $150,000 per claimant, with a $600,000 maximum for any event that harms multiple people. Claimants must give notice within 6 months of discovering injury.

Private physicians performing the same service and making the same error would be liable for up to $300,000 for pain and suffering. There is no limit, if a judge agrees, on economic damages. Claimants have up to two years to file after the date the injury and its cause were known.

Physicians employed by the federal government enjoy special malpractice protection under the Federal Tort Claims Act. There is a 2 year statute of limitations and the agency employing the physician gets to settle or dismiss the claim. People who have their claims dismissed must sue the United States, not the individual physician, and are required to do so in federal district court. They are denied a jury trial, the Department of Justice will litigate for the government, and claims are paid out of a congressionally appropriated fund.

Even patients rights laws like EMTALA are interpreted differently for private and public hospitals. In 1999 a federal hospital run by the Indian Health Service failed to diagnose an acute infection even though the patient went to the emergency room numerous times. The patient died. The family sued under EMTALA. The court ruled that the government had sovereign immunity and that EMTALA did not apply to the government.

Presumably, governments feel that patients get adequate protection under sovereign immunity laws. If that is the case, they should lower health care costs for everyone by extending the same protection to private physicians.

(Republished from State House Call)

• Correcting the Denver Post on the health care “affordability act”
• Health information technology: benefits and problems
• Colorado HB 1293: Tax Sick People to Create a Hospital Slush Fund
• Why “Patient Power”?
• The AMA: customer and supporter of government health care