Q & A: Mandated care

Q.  Does the government’s role in mandating medical services, either judicially or legislatively, negatively influence standards of care?

“Absolutely. They have a lot of good intentions, but they’re not working. We’ll have better health care in Massachusetts if we allow the doctors to police themselves. The Massachusetts Medical Society is fine. Tribunals are fine. At this point in time, there should be one moral and ethical mandate: to provide universal health care. Any other regulatory interference with the doctor-patient relationship is negative. I don’t tell lawyers how to practice law, or firefighters how to fight a fire. The U.S. has the resources and the ability to ensure that every sick person receives medical care. Beyond that, get out of my office.”

— Eric Ruby, M.D.

Chief of Pediatrics, Morton Hospital and member of the Mass. chapter of the American Academy of Pediatrics

“In my experience, the state’s role in mandating insurance coverage for medical services has had a significant positive impact on the availability of quality patient care. … [W]e must be mindful that legislative mandates may affect premiums. … There is also some concern that mandates for specific methods of treatment may become obsolete or be found ineffective as medical science and technology advance. … Legislators should anticipate the eventual emergence of new technologies and advancements in patient care before approving any new mandate, and they should continue to regularly review existing mandates to ensure their compatibility with current standards of care.”

— Rep. Peter J. Koutoujian,
D-Waltham

Chair of the Joint Committee on Public Health

“I would hope that any legislation concerning mandates would always be driven by applicable medical standards of care, without provisions woven in that reduce patients’ rights to legal recourse if they are victims of inappropriate care. If a piece of legislation results in substandard care due to a cost issue, that’s a problem, particularly for those who cannot advocate for themselves, such as the elderly or the poor. The bottom line is no legislation should obviate the physician’s responsibility to provide the appropriate standard of care. The patient’s right to that care is sacrosanct.”

— Annette Gonthier-Kiely
Medical malpractice attorney, Salem

“There are occasions where the government’s efforts to regulate the provision of medical services, including the manner by which individual physicians provide that care, have had a significant deleterious impact on the quality of care provided. My recent experience with some of the policies of the Board of Registration in Medicine speaks loudly to the effect of intrusive regulation on the maintenance of appropriate standards. Professional staff members of the board had created such a hostile environment between licensed practitioners, the government, hospitals and patients that there were a growing number of highly qualified Massachusetts physicians who periodically considered, or decided on, relocating to other jurisdictions. Recent changes in the composition of the Board hopefully will lead to the establishment of a more productive environment.”

—Paul Gitlin

Attorney, Rubin & Rudman, Boston, former chair of the Board of Registration in Medicine

Q&A: Liability and scope of practice

Q: What are the legal implications for physicians who supervise other health care professionals – such as nurse practitioners in “minute clinics” or physicians’ assistants – whose scope of practice has changed in recent years?

“Insurers are seeing a dramatic increase in the number of claims against non-physician practitioners. Where there is a requirement of physician supervision, the supervisors are almost always part of the lawsuit. There are several approaches to reduce this kind of a claim. First, it is vital that we all advocate for clear standards and protocols that ensure patient safety. Second, the members of the care team must be certain as to their roles as team members. Finally, the supervisory relationship must provide for unfettered, open and frequent communication among the team members. Communication is so important that it should not be left to chance; rather, the team should establish a structure that provides for frequent interchange.”

—Edward J. Christiansen, Esq.

Vice President and Chief
Risk Officer, Boston
Medical Center

“Taking patients away from their ‘medical home’ takes away the continuity of care, which can end up being dangerous. I have a great nurse practitioner alongside me, and I review everything she does. I may not always be present, but I’m never more than 5 minutes away. There’s a big difference between knowing the patient very well and remotely managing a possibly critically ill patient I don’t know. Some clinics only have an off-site doctor, hired by a big corporation, who doesn’t know my patients – I’m no legal expert, but it seems like a lawsuit waiting to happen. And it would be my liability, my license on the line.”

—Katherine Atkinson, M.D.

Family practitioner,
Amherst

“It’s going to be important for physicians of the future to be more of a coach or team leader to control quality while allowing other health professionals to share their traditional scope of practice. With a shortage of physicians willing to focus on primary care, we need to delegate more to nurse practitioners and other allied health professionals. If we could move toward joint and several liability provisions where liability is apportioned rather than concentrated on the one with the greatest assets or insurance, it would go a long way to making the system fair for all. The focus has to be on delivering safe, high quality care in a timely manner.”

—Richard T. Moore

State Senator, D-Uxbridge, Chair of the Health Care Financing Committee

“Liability can arise from accusations of failure to use due care in hiring, supervising or continuously evaluating a nurse practitioner or physician’s assistant. Liability insurance and a properly drafted indemnification agreement with the ‘minute clinic’ owner can protect the physician to a large degree.
In any event, the physician remains a tempting lawsuit target as a party with insurance and a ‘deep pocket.’ The implications for medical licensure can be far more serious. The Board of Registration in Medicine takes an expansive view of physician conduct subject to its oversight. The accusation of failure to adequately supervise would fall squarely within the type of conduct the Board investigates.”

— Andrew L. Hyams, Esq.

Of Counsel, Kerstein, Coren & Lichtenstein, Wellesley, represents
physicians and other health professionals

Q&A: Expert witness standards

Q: Should the state Legislature set minimum standards dictating who may testify as an expert witness in professional liability cases?

“Those of us who are firm believers in the jury system are in favor of allowing jurors to make the determination as to who is qualified and who is not, always subject to cross-examination. Setting arbitrary minimum standards would only serve as an uneven and unfair restriction of testimony by experts. It would in effect restrict the fundamental right to a jury trial by precluding jurors from hearing testimony from those who may shed light on a subject but not meet arbitrary standards set forth by the Legislature. Who can testify needs to be determined on a case-by-case basis. To apply a uniform standard that is not flexible would be unfair to everyone on both sides.”

—Andrew C. Meyer Jr.

Founding partner and medical malpractice

plaintiffs’ attorney, Lubin & Meyer, Boston

“It should. The Legislature has a duty to the people of Massachusetts to protect them, including a duty to set guidelines. In many cases the experts are coming in from other states, but there should be some sort of connection between the experts and Massachusetts. They should have to take a legal education course specific to Massachusetts to qualify them and to ensure some sort of continuity. There should be some connection between an expert witness and the standards of care and practice in Massachusetts.”

—Anne M. Gobi

State representative, D-Spencer, member of the Joint Committee on Public Health

“Micromanaging trials by setting minimum standards for experts would be a mistake. Trial courts in Massachusetts have exercised discretion broadly and reasonably. The U.S. Supreme Court and the Massachusetts Supreme Judicial Court have given the lower courts appropriate guidance. Strict minimum criteria might result in the exclusion of relevant and appropriate evidence.”

—Martin C. Foster

Managing partner and medical malpractice defense attorney,

Foster & Eldridge, Cambridge

“Ideally it should be left to medical societies to create standards for this type of testimony. There may be some value in the Legislature making some minimal requirements that are consistent with guidelines from medical societies.”

—Karen McAlmon, M.D., F.A.A.P.

Neonatologist, Childrens Hospital, Boston and

Winchester Hospital, Winchester