2013 Testimony

2012 Testimony

Chairman Micozzie, Chairman DeLuca, Members of the House Insurance Committee, I am Scott Bishop, senior vice president, state legislative services, for The Hospital & Healthsystem Association of Pennsylvania (HAP). HAP represents and advocates for more than 250 acute and specialty care hospitals and health systems across the state and the patients they serve. Thank you for the opportunity to share why we support House Bill 2299.

HAP supports this legislation because it recognizes the critical and unique nature of emergency medicine and ensures that the “safety net” of emergency care remains available and accessible to all Pennsylvania citizens and visitors. Under the federal Emergency Medical Treatment and Active Labor Act (EMTALA), hospital emergency medical care must be provided to stabilize patients who seek care regardless of diagnosis, ability to pay, or insurance status.

Pennsylvania’s hospitals face an increasing challenge in the provision of emergency medical services. During the past decade, 29 hospital emergency departments have closed, yet annual emergency department visits have increased from 4.8 million to 6 million, a 24 percent increase. Hospital emergency department staff treat many patients who require split-second decisions about their care—decisions that health care providers often must make without the benefit of critical information about a patient’s pertinent medical history. These decisions make emergency medicine inherently unique, and thus require a unique application of the liability standard. House Bill 2299 would appropriately refine how the liability standard is applied to Pennsylvania emergency health care providers under the Medical Care Availability and Reduction of Error (Mcare) Act.

It is important to note that House Bill 2299 does not relieve emergency health care providers of their responsibility to provide the highest levels of quality care to patients. Rather, this legislation would simply ensure that the right application of the liability standard is applied to this select group of health care providers, and help preserve access to emergency medical services.

House Bill 2299 requires a more stringent standard when determining whether or not an emergency health care provider should be held liable for any act or failure to act. More specifically, it calls for clear and convincing evidence to be presented in order for a health care provider to be proven to be grossly negligent. This change is appropriate given the intrinsic differences between emergency care and more routine physician/patient interaction. House Bill 2299 would require Pennsylvania’s legal system to recognize these differences, and thereby limit the specious lawsuits that unnecessarily pull emergency health care providers away from their core mission of treating patients.

This legislation also correctly identifies the mitigating circumstances that must be considered in any liability action related to the provision of emergency health care. Similar legislation has been enacted in Arizona, Texas, Florida, Georgia, South Carolina, Utah, and West Virginia. And, many other states also are considering qualified immunity for emergency health care providers.

Most importantly, emergency health care providers do not always have the opportunity to access a patient’s medical records because of the immediacy of the medical crisis. And, they may not have the means to fully determine whether a patient has any pre-existing medical conditions or allergies, or whether or not they are taking any medications. Likewise, the bill appropriately asks the courts to consider whether there is a pre-existing relationship between the patient and the emergency health care provider. Finally, House Bill 2299 would require that consideration be given to not only the issues constituting the need for emergency health care, but also the factors impacting the actual delivery of care in an emergency setting—both in the hospital and in the field.

Again, all of these mitigating circumstances are unique to the delivery of emergency health care, and they further demonstrate why the commonwealth must apply a different standard of liability to these providers.

While the ongoing discussion about the cost of health care is well beyond the scope of this bill, it bears repeating that medical liability concerns—both in the emergency department and throughout the hospital—continue to be a major part of what determines health care cost. The annual expense of defensive medicine is in the tens of billions of dollars alone. House Bill 2299 as well as other important reform initiatives such as House Bill 495 (Apology/Benevolent Gesture) sponsored by Representative Keith Gillespie, represent a straight-forward, common sense approach that will not only drive down the cost of health care in Pennsylvania, but also help to improve the overall legal climate in the commonwealth. Even West Virginia, the state ranked last in the U.S. Chamber Institute for Legal Reform’s “2012 State Lawsuit Climates Report,” has enacted legislation that provides an extra level of protection to emergency health care providers.

Pennsylvania hospitals and health systems are committed to providing the highest levels of quality care to all the patients who enter through their doors. The enactment of House Bill 2299 would enhance our ability to maintain that commitment and further ensure access to emergency health care services in the commonwealth.

Thank you for this opportunity to testify in support of House Bill 2299, and to provide the hospital community’s perspective on this issue. I am happy to respond to any questions you or the members of the Committee may have.

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