Monday, June 26, 2017

Bill to Protect Doctors from Malpractice Lawsuits

By on May 27, 2017

SAN JUAN — Contending it seeks to protect public health and stop doctors from leaving Puerto Rico in hordes, the government introduced legislation that would place roadblocks on alleged medical-malpractice victims seeking damages in court.

This is the second bill La Fortaleza has promoted for the medical profession. Previously, Gov. Ricardo Rosselló enacted a law that creates a low 4% tax rate on doctors’ incomes.

Lawyer José Fernando Velázquez, who has written a legal book on medical malpractice, already said the bill has “unconstitutional provisions” and does not address the true reasons physicians and recent medical school graduates are leaving Puerto Rico.

The main reason doctors were leaving Puerto Rico was the inadequate compensation they received from health insurance companies. (Christopher Furlong/Getty Images)

Doctors leave for a host of reasons that include better quality of life and remuneration, he indicated. Most importantly, they leave because they do not want to continue to be held hostage by insurance companies.

“Not only do they pay doctors a small amount for their services and keep the largest share for themselves, but they [insurance companies] also intervene in patient care and with the judgment of doctors by determining things such as the amount of time a patient needs to be hospitalized,” said the author of Crisis de Impericia Médica: mito o realidad” (“Crisis of Medical Imperialism: Myth or Reality”).

In the case of recent medical school graduates, Velázquez said Puerto Rico does not have residency programs, thus forcing them to go to the mainland U.S. to pursue degrees in specialized medicine. Once they are there, most do not return to Puerto Rico because they are offered better remuneration.

“Doctors do not leave because they think they are going to get sued or because they do not want to pay taxes,” he said.

If that were the case, Velázquez said, doctors are going about it the wrong way because in the mainland U.S., insurance premiums for doctors are “15 times higher” than in Puerto Rico and so are the amounts in damages awarded to medical malpractice plaintiffs, which can go as high as millions of dollars.

Awards do not top $250K

“In Puerto Rico, the courts usually will not award damages in amounts that are higher than what the insurance companies will pay,” he said, adding that such amounts are traditionally not higher than $250,000.

A 2012 study commissioned by the Custom Research Center of the College of Medical Surgeons found the primary reason doctors were leaving Puerto Rico was the inadequate compensation they received from health insurance companies, followed by the high operational costs and the cost of medical equipment. The cost of medical-malpractice insurance was cited as a reason but it was not on the top of the list.

The number of doctors in Puerto Rico went down to 11,088 from 13,452 in the period from 2009 to 2014, an average loss of about 500 physicians per year, according to government statistics. About half the doctors who have left Puerto Rico are specialists in different medical fields.

Senate Bill 530 (and its equivalent House Bill 1083), introduced by La Fortaleza earlier this month, will allow a judge to appoint a panel that will determine whether a medical-malpractice suit is frivolous or not. The panel will comprise a former judge or lawyer, a healthcare professional and an individual representing the public interest from a list provided by the P.R. Supreme Court. The panel will have 45 days to make the determination. During that period, the panel will have the authority to hold meetings and interview witnesses.

If the panel determines the lawsuit is frivolous, the plaintiff or alleged victim of medical malpractice will have to pay a bond, whose amount will be determined by a judge, to continue the lawsuit in the courts. Medically indigent individuals will not be required to pay the bond.

Intervening with right to sue

Critics say this is not the first time the government has tried to intervene with the rights of medical-malpractice victims to sue. In the past, the government has promoted bills to create arbitration panels and put caps on the amounts paid out to medical-malpractice victims.

Velázquez said the bill has several unconstitutional provisions, including that it is an “improper delegation” of powers from the judicial branch to a panel. He also said the bill violates the due process of law of alleged victims of medical malpractice in seeking a legal recourse.

The other problem with the bill is that the legislation will “contaminate the mind” of the judge in achieving an objective ruling in the case. “In Puerto Rico, you cannot take a case to a jury. So, it will be up to the judge, the same one who has a report that says a lawsuit is frivolous, to decide the case,” he said.

Velázquez said the costs to take medical-malpractice cases are already very high because they require the use of experts, who charge fees to evaluate cases. “These cases pose an uphill battle,” he said.

The legislation is also vague in that it does not define what a frivolous case is or what qualifies a person to be medically indigent to get a waiver from having to pay a bond, he added.

It appears the authors of the bill know about its constitutional problems. “It is the express and unequivocal desire of this Legislature for the courts to comply with the provisions and application of this law as much as they can, even if any part of it is annulled, invalidated or declared unconstitutional or even if its application toward a person or in a specific circumstance is voided, invalidated or declared unconstitutional,” the bill states.

Caribbean Business was unable at presstime to get a response from the Association of Medical Malpractice Victims, which in the past has opposed similar bills.

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