The goal of House Bill 1145, according to its authors, is pretty straightforward: to get free health care to residents who need it, to make it easier for doctors to show up at places like food banks and volunteer their time.
On its face, the strategy legislators want to use seems pretty simple: they want to eliminate the possibility a doctor could be sued after giving someone free care. They want to make it unnecessary for those doctors to carry medical malpractice insurance. Doing that, theoretically, would encourage more doctors to volunteer their time.
But in fact, it’s not simple. Legislators and attorneys have been debating the bill, known to some as the Civil Immunity Bill, for some time. Eric Koch, state representative from Bedford who is a co-author of the legislation, said the state legislature considered the bill last year.
“We just couldn’t get the bill in a form that we really felt avoided all the unintended consequences,” Koch said.
Koch is also an attorney who routinely represents clients in medical malpractice cases. If anyone should be wary of a law that makes it harder to sue doctors, you might expect it to be him. The bill, as its currently written, would allow patients to effectively sign away their rights to sue for malpractice. In exchange the patients could get free care.
“When you give an immunity, it’s a very powerful thing,” Koch said. “There have to be very compelling reasons and in this case it was the opportunity to essentially triage people and get them into a continuum of care that they need.”
To be clear, the question of medical malpractice insurance is a big one for doctors who volunteer their services. In Bloomington, the Volunteers in Medicine clinic operates 5 days a week with volunteer doctors. Nancy Richman, the executive director there, says the insurance issue was dealt with many years ago. The providers at Volunteers in Medicine are covered through the Federal Tort Claims Act, which was enacted in the mid-1990s.
“(Free) clinics are not able to afford the cost of malpractice liability for each individual provider, nor are the providers willing to pay for their own malpractice insurance when they’re going to volunteer their time,” Richman said.
Clinics like Volunteers in Medicine would not be affected by House Bill 1145. They’re specifically exempted and they continue to be covered under the federal law. The bill only applies to doctors giving free care outside of clinics or hospitals.
And while Koch can be counted as one attorney who is satisfied with the Civil Immunity Bill, he may not represent the majority of lawyers. The Indiana Trial Lawyers Association is not supporting the proposal.
Mickey Wilson, the executive director of the Association, says she does like this bill better than previous versions of the legislation. The new bill, for example, excludes major medical procedures. The rationale there is that patients getting non-invasive care are less likely to wind up in situations where they need to file a malpractice lawsuit. But Wilson says she’s worried many patients may not realize the implications of signing away their rights to sue.
“I think there is very little understanding of what immunity actually means,” Wilson said. “What it means is, as a matter of public policy, we know you’re going to do something that…a reasonable person would not do. And we’re going to say…you’re not going to have to pay for the harm you’re going to cause.”
Wilson agrees with the bill’s authors on one thing: the chances of any one of these affected patients needing to sue their doctor is not good. Dave Frizzell, the main author behind the legislation, says the states of Washington, South Dakota and South Carolina, already have similar laws.
“They have had no claim at all, zero, zip,” Frizzell said. “To say it’s miniscule is overstating the case.”
Again, Wilson agrees in a way. She doesn’t dispute Frizzell that there aren’t many malpractice suits associated with free care.
“The problem is if it’s your case, if it’s your child, it’s the biggest thing in your life,” Wilson said. “The tort law really is for the exception.”
Wilson says, in her mind, the problem is not with the patients or the doctors, but with the insurance companies. If these particular malpractice suits are so rare, she asks, why is the insurance so expensive?
“I think the question needs to be asked, ‘What is the basis for increasing the premium,’” she said. “And I don’t think this legislation asks that question.
After several rounds of negotiations, it appears the legislation could pass this year. The State House approved it last month by a vote of 91 to 0. The bill got a first reading in the State Senate last week. And according to Frizzell, Governor Mike Pence has made it one of his “main bills.”
And the law would fit with much of the rest of the health care agenda advanced by Indiana Republicans, who have largely suggested that the Affordable Care Act is so flawed that it’s up to state legislators to find solutions for the poor and uninsured.
The Civil Immunity Bill currently awaits a vote in the Senate’s Civil Law Committee.