HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Wednesday, December 21, 2011

Guest Blogger James T. O'Reilly - Fed-Mal: Revenge of Healthcare Policy Wonks

Oreilly06Wonks like us lack the bling of “big time courthouse lawyers.” For those plaintiff’s attorneys whose billboards and phone book cover ads have annoyed us as quietly competent health law gurus, our day of retribution is coming. You slogged through our classes in administrative law, struggled with adjudication processes and burned the midnight oil learning the difference between a regulation and a guidance document. Revenge is sweet.

In my forthcoming text on the new medical malpractice environment, I explain how the administrative law student has a field day under PPACA while the dramatic Perry Masons of the Bar will slump into (relative) silence. As a result of the 2014 inclusion into the health care system of approximately 42 million uninsured persons [this number varies and time will tell the totals], the health care system is likely to face a bolus of postponed and untreated medical conditions as the new entrants appear on the doorstep to be diagnosed, treated, surgically corrected or otherwise healed.

A majority of the 42 million will be “working poor” whose care will come from either “community health centers” or “free clinics,” which now treat about 23 million patients annually. These descriptors are terms of art for lower cost sites at which medical care has been subsidized by charities and/or federal funding. Overcrowding, stress, lower paid staff, records confusion, etc. make these facilities somewhat more challenged to deliver perfect patient outcomes with every patient visit. That’s the right way to predict that medical malpractice claims will rise as the diagnostic and treatment roles of these funded clinics are pushed beyond their current capacity. Mistakes are made everywhere in the healthcare system, of course, but the stage is set for a medical malpractice scenario in the rural, rust belt and inner city clinic environment.

Aha! Plaintiff’s lawyers might salivate … did you say lots more med-mal claims are possible? Too bad, you who skipped administrative law; you have never seen an SF-95 and don’t understand HRSA’s PAL on FTCA roles of HHS-GC. You’ll be DOA!

In briefest terms, the clinics are immune from state tort med-mal claims; specialists in administrative claims will be invaluable to injured victims; Assistant U.S. Attorneys will easily remove and dismiss any state med-mal cases; of the administrative claimants anticipated, a small number will emerge as Federal Tort Claims Act litigants; FTCA cases are tried by the federal magistrate judge with no jury, a cap on attorney fees and a limitation on judicial awards to the specific dollar amount of the filed administrative claim. Money comes not from the doctor or clinic but from a federal fund whose appropriations are fixed in advance; awards late in the summer cannot be paid until the fund’s new fiscal year begins October 1st.

 Stay tuned for later blog entries as I expound on the impact of the PPACA on the glittering hubris of the plaintiff’s jury masters!

- James T. O' Reilly

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