Lawsuits are not just an abstract threat for Dr. Peter F. Graves.
The associate chief of emergency medicine at South County Health has been sued three times throughout his 22-year medical career. Two suits were dropped, but the third went to trial twice because the first ended in a hung jury.
The ruling ultimately came down in Graves’ favor, but the emotional and mental toll of weeks of preparation plus testimony before a jury and the patient’s family haunt Graves years later.
“All of us that practice medicine are trying to help people,” he said. “But all of us are also human. Mistakes can be made. Or there can be no mistakes but the outcome is not desirable.”
Especially now.
Like hospitals and health care facilities nationwide, South County Health has been understaffed or running low on supplies needed to treat the growing number of patients flooding its waiting rooms and filling its beds. And that leaves the hospital and its overworked health care providers exposed to all kinds of legal problems.
The state has stepped in. Gov. Daniel J. McKee in December signed an executive order that offers hospitals and their workers’ protection from civil lawsuits tied to supply or staffing shortages.
How much the policy helps hospitals in crisis depends on who you ask.
The state’s two largest hospital systems had little to say. Lifespan Corp. declined interview requests. Raina Smith, a spokeswoman for Care New England Health System, responded in a two-sentence email statement calling the order “timely and helpful.”
Graves, for his part, described the order as a “comfort on paper,” something to take a bit of weight off himself and fellow ER doctors and nurses riddled by anxiety over potential lawsuits.
The governor’s order provides some protection against medical malpractice, but it’s not an air-tight legal defense.
“Where there’s a will and a lawyer, and there’s always a willing lawyer, there’s typically a way,” said Aaron Robinson, CEO and president of South County Health.
While medical malpractice lawsuits are not uncommon, those tied to staffing shortages were not a frequent occurrence, at least before the pandemic, according to Michael J. Racette, a partner for the law firm Morrison Mahoney LLP, which has offices in Providence. Racette has represented health care providers, hospitals and medical groups in court.
Whether the pandemic-induced labor crisis will usher in a wave of such claims is unclear.
The three-year state statute of limitations on medical malpractice and negligence claims means most lawsuits don’t get filed immediately after the problem happens, Racette said.
If and when those claims arise, the fight will be over the exceptions and loopholes in protections such as the state executive order, Racette said.
Even then, the executive order might not sway the outcome, since claims of negligence or malpractice during the pandemic would be judged in the context of the emergency circumstances anyways, he said.
Alana O’Hare, a spokeswoman for the governor, said in an email that hospital leaders requested McKee issue the order less due to their fear of litigation and more because that concern over being sued was making it hard to hire and keep workers.
But Graves doubted that a little extra protection from the state against lawsuits was going to lure much-needed nurses and doctors to Rhode Island hospitals. He blamed insurance companies’ low reimbursement rates for state health care providers – relative to neighboring states – as a bigger barrier to attracting and retaining workers.
Even those committed to staying in the Ocean State may be hesitant to stick it out in the harsh hospital environment of today.
Fewer workers mean those who are still clocking in work even longer hours, and once-readily available drugs and equipment can be scarce. Patients in critical condition may wait hours or even days to get the care they need.
Graves described one situation in which a fellow ER doctor spent three hours beyond the end of their shift calling other hospitals and specialty treatment centers as far away as Albany, N.Y., desperate to find a placement for a patient with liver failure.
On the staffing front, South County has fared better than some of its competitors, down about 12% from a full roster of employees versus the 40% unfilled positions other hospital systems have reported, Robinson said. But he also knew that the vacancy rate could double in a day if a COVID-19 outbreak forces workers back home to quarantine.
Like Graves, Robinson was unsure whether temporary state liability protection would do much to tip the balance in the battle to hire and retain workers. But it certainly couldn’t hurt, he said.
“Any sign the community can give to them that they have their backs is well-received,” Robinson said. “It helps to know the posture of the state is one of ‘Hey, thanks for the exhaustive hours and working short for two years and serving the community.’ It’s a message of support, and health care workers need that.”
Nancy Lavin is a PBN staff writer. Contact her at Lavin@PBN.com.
