In June 2022, a New York judge will rule on a physician’s claims that the federal No Surprises Act denies doctors “the right to bill their patients for the reasonable value of the services they have rendered.”
Physician groups have also tried to stop the No Surprises Act in court, claiming that the dispute resolution process in the Act favors insurance companies over patients.
This legal action is different. Dr. Daniel Haller argues that more than three-fourths of his emergency care patients are out-of-network, so he bills them directly for surgeries that their insurance companies don’t cover.
The new federal law, which took effect in January 2022, ends that practice. If his lawsuit prevails, a national injunction by a federal judge could effectively invalidate the No Surprises Act and its patient protections.
Dr. Barak Richman, a professor at Duke University Law School, said Haller’s action was a long shot.
Under the No Surprises Act, which was part of the 2021 Consolidated Appropriations Act, out-of-network patients are only financially responsible for in-network costs, at least in most cases.
Duty of Care
Most people become doctors so they can use their knowledge to help people and care for their patients. A doctor must also adhere to a duty of care, which is a fiduciary duty.
This legal responsibility, which also applies to other professionals, like accountants and lawyers, requires doctors to set economic, lifestyle, and all other priorities aside, and only do what is best for their patients.
If excellent patient care requires a doctor to lose money on a procedure or work through a child’s piano recital, the doctor must pay that price.
Here’s another way of looking at a fiduciary duty. When they drive to work, most people have a reactive duty.
They must avoid car accidents when possible. When they go to work, doctors have a proactive duty. They must anticipate possible problems and avoid them.
Since the duty of care, which applies in all three areas of patient care, is so high, it’s easier for a New York medical malpractice attorney to establish negligence, or a lack of care.
Also largely because of the high duty of care, significant damages are usually available in medical negligence cases.
Lack of Care
Pre-procedure medical misdiagnosis, surgical mistakes, and post-procedure hospital infections are the most common kinds of medical negligence in New York.
Economic factors directly affect misdiagnosis issues. Mostly because they are afraid they may not get paid, some physicians don’t order a full battery of diagnostic tests.
As a result, they diagnose illnesses based on instinct as opposed to evidence. Doctors have a great deal of education, training, and expertise. But they don’t have enough of these things to wing it.
Cancer is one of the most commonly misdiagnosed illnesses. Early-stage cancer patients usually have symptoms like fatigue and general pain.
These symptoms don’t point to any specific illness.
They certainly don’t point to cancer, which many physicians see as a genetic or lifestyle disorder.
Because of the lack of data, doctors usually look for known red flags, like cigarette smoking or family history. If the patient doesn’t have these markers, some doctors may not even consider cancer.
Cancer survival rates have improved a lot since the 1990s. A delayed or inaccurate diagnosis basically erases all this progress. Treating physicians are forced to play catch-up.
A shocking number of doctors make rather pedestrian errors during surgical procedures, like operating on the wrong body part or leaving a surgical instrument inside a patient.
These errors aren’t nearly as shocking when considering the strong economic overtones of a surgical procedure.
Wrong body part surgical errors are especially common in very busy emergency operating rooms. Doctors who take time to review charts and otherwise prepare themselves should never make such mistakes.
Similar issues apply to gossypiboma (retained surgical sponge) and similar injuries.
A brief instrument check just before the procedure ends could end such problems.
Pressure also causes surgical mistakes.
That’s often the case in birth injuries. If the baby doesn’t float naturally down the mother’s birth canal, many doctors make poor decisions under pressure. When doctors take dangerous shortcuts, such as the use of dangerous mechanical birth aids, people get hurt.
Frequently, doctors blame surgical errors on nurses, patient care technicians, or other members of the surgical team.
Legally, however, doctors are responsible for injuries in these situations.
Hospitals are breeding grounds for various kinds of infections. Frequently, doctors don’t take all necessary precautions to stop these infections from spreading.
A defective product, as opposed to medical negligence, could cause infection.
The Bair Hugger Warming Blanket is a good example.
This blanket includes an air pump which sucks air from near the floor, heats it, and uses it to warm the blanket. Unfortunately, air near the floor is often dirty. Bacteria multiplies in the heat, and this bacteria attacks an open wound.
Typically, a manufacturer is strictly liable for damages if a defective product causes injury. There’s no need to prove negligence in these cases.
Doctors who don’t put patient welfare above everything else risk harming their patients.
For a free consultation with an experienced personal injury lawyer in New York, contact Napoli Shkolnik PLLC. You have a limited amount of time to act.