Testimony Submitted to the Senate Health, Human Services and Aging Committee

The Honorable Lynn Wachtmann, Chairman
On Senate Bill 86
June 4, 2003
By Cathy J. Levine, JD, Executive Director, UHCAN Ohio

Chairman Wachtmann, members of the Senate Health Committee. My name is Cathy Levine. I am Executive Director of UHCAN Ohio, a statewide, nonprofit organization working to achieve high quality, accessible, affordable and publicly accountable health care for all Ohioans, through education, community empowerment, and policy work. 

I am here today to express my serious concerns about Senate Bill 86. SB 86 extends immunity from civil liability to physicians and other health professionals who see low-income patients, on a volunteer basis, in their office practices, in hospitals, or other health care facilities. This extension of immunity from malpractice liability unjustifiably and needlessly creates two standards of care: one for the insured, the standard of care that has evolved over decades of medical practice; and another, far lower standard of care, for the uninsured poor, a standard best described as, "Anything goes" (except willful misconduct). I have read the proponent testimony from representatives of Access HealthColumbus and still fail to see the justification for expanding the "Good Samaritan Law" to insulate physicians in their own offices from liability for negligence.

The original "Good Samaritan" Law provided immunity from civil liability to physicians who render aid at an accident scene or in other emergencies where they lack resources, such as additional staff, instruments and medicine, necessary to provide the usual standard of care. Ohio then extended its "Good Samaritan" law to protect physicians providing voluntary care in homeless shelters or free clinics, under the same rationale - that the setting lowered the practitioner's ability to render the usual standard of care. 

The same rationale for not holding a physician accountable for the usual standard of care at a roadside car crash or in a free clinic does not, however, exist for a physician in his/her own office or in a hospital. The physicians offering uncompensated care in their offices are doing so under the same circumstances in which they see insured patients. Presumably, all have malpractice coverage in place covering all patients they serve. Then why provide physicians with immunity from liability in their own offices? The only rationale offered for SB 86 is that physicians are unwilling to see uninsured patients in their own offices for fear of liability. But their malpractice insurance covers them!
In the office setting, the only difference to the physician between the insured and uninsured patient is that the latter is poor and uninsured. Why should that justify a lower standard of care? If that patient is injured by physician negligence, why let either the physician - or, as a practical matter, his malpractice insurer -- off the hook?

Imagine an uninsured person in your community referred to a doctor he doesn't know, whose office is in an unfamiliar location but who is willing to see the person for free. The patient arrives at the office and is asked to sign a form relieving this unfamiliar doctor from liability if the doctor's negligence injures or kills him. How will this patient feel? How many of you are willing to see a doctor who is immune from liability if he commits negligence that disables or kills you?

You heard, last week, from a patient named Sheila Grimes, who was fortunate to receive excellent care at the Physicians Free Clinic. Why shouldn't Ms. Grimes have the same legal protection that you and I do when she seeks medical care in a physician's office? 

As you heard, this bill is supported by the Columbus Medical Association and Foundation, originators of Access HealthColumbus, a local initiative of the medical association, hospitals, and other stakeholders, to create a system of care for the uninsured. They have received a federal CAP (Community Access Program) grant, city, county, and private foundation funding totally over $2.3 million to "design and test a model health care delivery system for vulnerable persons." Their pilot site is the South Side of Columbus, a low-income area with a severe shortage of primary care physicians.
Access HealthColumbus plans to fill the void using doctors located elsewhere in the city providing "medical homes," or continuous primary care, on a voluntary basis, in their own practices, to enrolled patients with incomes at or below 200% of poverty (thus the change in SB 86). The Columbus Medical Association apparently believes that it needs SB 86 as an inducement to get its members to take on management of low-income, uninsured patients in their practices. In exchange, patients in this "model" system enter at their own risk, with no liability protection, except in the case of willful misconduct. 

UHCAN Ohio is unwilling to assume that such an extreme solution as Senate Bill 86 is required. Where's the evidence that low-income, uninsured patients are more likely to sue? Has any doctor demonstrated that his/her malpractice rates will rise if he/she accepts the care of a dozen or fewer uninsured patients? Many physicians are already seeing uninsured patients with marginal incomes whose bills they write off. The insurer covers those persons. Why should it not cover the additional uninsured patients? It seems we need to educate our physicians about their coverage and risk before tampering with the rights of uninsured patients.

Lastly if an unprotected patient is injured by malpractice and becomes unable to work, his/her care will fall to the state. Why are we rushing to put that liability on taxpayers? These are questions that need to be carefully examined before we hand another break to the malpractice insurers, at the expense of low income people.

There is an alternative to the Access Health Columbus "model" for extending access to care for low-income, uninsured people, one supported by the Bush administration. Expand our federally qualified health centers, which provide comprehensive, quality care to people regardless of ability to pay - and they are covered under the Federal Tort Claims Act. Access HealthColumbus opposed a proposal to expand the FQHC in their pilot area, choosing to rely primarily on volunteer doctors outside the area.

Thank you for considering my testimony and I would be happy to answer any questions you may have.