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House of Representatives
Session of 2017 - 2018 Regular Session


Posted: April 19, 2017 12:10 PM
From: Representative Eli Evankovich
To: All House members
Subject: Clear and Convincing Legislation (Former HB1064)
In the near future, I intend to reintroduce legislation which would enact special liability protection for emergency physicians and emergency personal by changing the standard of proof in judicial tort lawsuits. As you may recall, this proposal was introduced last session as House Bill 1064 and would amend the act of March 20, 2002 (P.L.154, No.13), known as the Medical Care Availability and Reduction of Error (Mcare) Act.

In cases of true emergencies, doctors and emergency personnel currently are held to the same standard of care for a patient as a doctor or physician who has known the patient for years or even decades. Physicians, who have a history of treating the patient, often have had time to prepare for certain care plan or treatment.

Emergency physicians and emergency personnel do not have that luxury of knowledge about the patient. Often, they must make immediate medical decisions to save the patient’s life without the benefit of knowing if the patient is diabetic, if they have a serious allergic reaction to certain medications or if they have a pre-existing heart condition.

Both physicians, the one who has extensive knowledge of the patient’s health history and the one who has absolutely no knowledge of their background, are held to the same standard of proof in a lawsuit. I feel that this is unfair to the physician and can possibly delay care which could cause further harm to the patient.

The current standard for both physicians is called “Preponderance of the Evidence.” This is a relatively low standard which only requires the plaintiff to show greater weight of the evidence is in their favor. We are proposing that for emergency situations, when the medical personnel have no knowledge of or ability to obtain this information directly from the patient due to their condition or history with the patient, the standard be elevated to “Clear and Convincing” evidence.

This level would state that no physician or emergency personnel shall be held liable for any act, or failure to act, unless it is proven by clear and convincing evidence that the physician or healthcare provider’s actions were grossly negligent in that circumstance. This new standard does not relieve the physician from providing quality care, but balances this responsibility with the amount of knowledge that they have of the patient’s health history.

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Introduced as HB1366