A patient alleging medical malpractice by a medical center must first file a complaint with the US Department of Health and Human Services for review. The government can make a settlement offer or dismiss the claim. If the claim is denied or not settled, or the six-month review period expires, the patient may file a claim in federal court under the Federal Tort Claims Act or the FTCA.
To receive this federal protection, medical centers must have quality improvement and risk management programs and must show regulators that they have reviewed the professional credentials, malpractice claims, and license status of their physicians and other clinicians.
Ben Money, senior vice president of the National Association of Community Health Centers, said the process improves care and diverts meager transaction dollars to patient needs rather than costly medical error coverage.
“There are strict security measures in place to ensure that medical center grantees comply and that patients receive the best possible care,” he said. “The FTCA is forcing medical centers to be more, not less, vigilant about quality.”
As of September, about 86% of community health centers were covered by the FTCA for medical malpractice, said Christy Choi, spokesperson for the Health Resources and Services Administration.
She said that under the program, the government has made “strong efforts to improve the quality and safety of patients.”
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The system makes it more difficult for patients to recover damages than it would be if they went to state court for malpractice claims, lawyers involved in cases against medical centers said. In addition to the ban on punitive damages, such cases are decided by federal judges, not juries. They added that the absence of a jury is important because judges are less likely to get emotional, which could mean lower dollar amounts in awards.
Plaintiffs are also at a disadvantage because the federal government has unlimited resources to defend cases, unlike patients and their attorneys, said Christopher Russomanno, a Miami-based lawyer.
“Preparing for the trial cost us hundreds of thousands of dollars,” said Jack Beam, an Illinois attorney who represented Rhonda Jones. “Our record was $900,000 in legal fees.”
All of these factors can make finding a lawyer a hurdle for patients.
Deborah Dodge, a Missouri lawyer, said some attorneys are reluctant to take on cases because the government limits their fees to 25% of the settlement amount. In contrast, plaintiffs’ attorneys often take around 40% in successful malpractice cases in state court.
Rhonda Jones was one of those who received compensation. Her baby was taken to a children’s hospital shortly after birth by an emergency C-section at West Suburban Medical Center in the Chicago area in December 2016, according to her lawsuit. Baby Alaina was treated for brain damage due to lack of oxygen, and now she has cerebral palsy.
Jones had signs of high-risk labor when she arrived at the hospital at almost 39 weeks pregnant: she was 40, her 11th child, had severe preeclampsia and possibly gestational diabetes.
Her lawsuit alleged that she was not properly monitored in the hospital and that the operation was not performed in time to prevent Alaina from being injured.
Jones agreed to a $21 million settlement, of which $15 million was paid by the federal government, as some of the doctors involved worked at the PCC community health center. The clinic and hospital declined to comment. In court documents, the government and the hospital denied wrongdoing.
The money, most of which is held in trust under the supervision of the court, provides for Alaina, who will need care throughout her life.
“Before what happened to Alana, I loved them,” Jones said of the medical center she went to during several of her previous pregnancies. “They were great for me because they were open late at night when I was working.”
“I would still advise someone to go to PCC because maybe they will find the right doctors when they give birth,” Jones added.
Kaiser Health News is a national health policy news service. It is an editorial independent program of the Henry J. Kaiser Family Foundation and not affiliated with Kaiser Permanente.