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Monday, May 18, 2015

Federal Laws and Medical Malpractice

Can Federal Medical Standards Impact Medical Malpractice Cases?

Normally medical malpractice cases are driven by state law, with state statutes interpreted by state courts laying the groundwork for both liability and defenses by medical personnel. However a federal law just signed by President Obama could make it more difficult for plaintiffs to prove their cases by limiting the types of evidence they can use.
The law reauthorizing Medicare and the Children’s Health Insurance Program has a section that gives health care providers new protections against medical malpractice claims, according to the New York Times. The law requires the federal government to measure the quality of medical care, in part by having doctors rate their own performance. But these measurements would not be allowed in medical malpractice cases. 

The federal government and health insurers are requiring more statistics and information concerning the quality of medical care. Supporters of this new law claim that this is only a new source of information that cannot be used and it will not prevent use of information traditionally used in malpractice cases (expert testimony of the “standard of care,” the general guide for what a health care provider should do in a particular situation and patient). 

The language used in the law was suggested by physicians and their insurance companies, who claim the federal guidelines are different than the “standard of care” so should not be used in medical malpractice cases.

Many of those aligned with patients’ rights disagree with the approach. 

• Tom Baker, a University of Pennsylvania professor said the provision “does not make any sense” because the information in question, “indicate(s) what a reasonable doctor does and should do, just like guidelines adopted by a medical specialty society.”

• Consumer group the National Consumer Voice for Quality Long-Term Care, claims the law would make it harder for nursing home residents to establish negligence by showing violations of federal health and safety standards.

• James L. Wilkes II, plaintiffs’ lawyer from Florida, told the Times he has often used inspection reports with violations of federal standards in cases against nursing homes and their medical directors. He said these violations should be used to show defendants failed to meet their “duty of care.”

Medical malpractice cases can be difficult to prove and this new law will not make it any easier, but if you or a loved one has been injured due to the negligence of a health care provider, do not let this stop you from learning about your rights by calling the Sawicki Law Firm today at (888) 468-8844 for a free consultation. There is no fee unless you collect. Based in Dallas, the Sawicki Law Firm helps victims of medical malpractice throughout Texas.


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