Malpractice measure gets tentative OK

A bill that has drawn the ire of area trial lawyers who say it amounts to a blanket malpractice immunity for all but the most horrific death or injuries in emergency rooms in the state drew a close 16-12 tentative vote of approval Tuesday in the Senate. It will receive a final vote Wednesday.

Despite the slim margin, passage is considered a major victory for sponsor Sen. Peter Knudson, R-Brigham City. Proposals similar to his SB79 have been defeated twice before, as they have in every state except Georgia, according to a spokesman for Utah trial attorneys.

The bill isn't likely to lose its capacity for stimulate controversy as it moves to the House for consideration, particularly with just over a week remaining the session.

Utah's trial lawyers, who oppose the bill as the Utah Association of Justice, say in a letter to the Utah Medical Association that the medical association's overenthusiastic support of SB79 is drastically overstating the number of actual medical malpractice lawsuits filed.

According to its own survey of 450 attorneys in 2007, the letter signed by Charles H. Thronson, president-elect of the justice association, states that the number of actual lawsuits is a fraction of what the UMA is claiming.

The letter contends that the UMA has inflated the real number of lawsuits against ER physicians by at least 100 percent and has inflated the number of ER physicians sued in 2008 by more than 300 percent.

Thronson said there's no need for the UMA to use inflated numbers because actual ones can be found by anyone who checks district court records.

"If the data on lawsuits filed in 2008, or any other specific year for that matter, against ER physicians in Utah matches the UMA's claims, the Utah Association for Justice will withdraw its opposition to ER immunity," Thronson writes.

He implies that the UMA is mashing data of actual filed lawsuits with threats and complaints. An ER physician is not "sued" when he or she receives a complaint letter or phone call or participates in an internal hospital investigation or files a report of possible claim with his or her insurance company or gets a notice of intent or request for prelitigation hearing, the letter advises. "As you know, most of these go nowhere. A physician is sued when a lawsuit is filed."

Without the verified data, "we expect the MA to act responsibly and ask its sponsor to withdraw SB79."

Knudson said the so-called frivolous lawsuits and shortage of ER doctors are just two aspects addressed in the bill. Regardless of the actual lawsuit count, the abiding threat of malpractice charges have had a chilling effect on the capacity of ERs to keep physicians on-call, Knudsen said.

"The bill changes the standard for malpractice but does not thwart a patient's legal options of redress and provides additional immunity for doctors who are often thrown into chaotic circumstances in the ER," he said.

E-mail: jthalman@desnews.com