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Apparently, however, the Texas medical establishment is the exception to this approach.In February, ten state and local medical societies, including the largest, the Texas Medical Association, asked the state supreme court to uphold the appellate ruling in favor of HCA.
The amicus, or "friend of the court," brief filed with the supreme court was prepared by Claude McQuarrie III, a Fulbright & Jaworski attorney and TMA lobbyist. Joining in were, among others, the Texas Pediatric Society, Texas Children's Hospital and Baylor College of Medicine. The brief argues that letting the Texas Family Code into the NICU "could force civil and criminal liability on healthcare providers."
The Miller case touches on issues that are "certainly important to physicians," says Rocky Wilcox, a staff attorney for the TMA. However, he acknowledges that the statewide group had taken no position until lawyers for HCA "asked us to get involved."
That request was made in a January 11 letter to the TMA from HCA's lead attorney, John Serpe. Wilcox declined to release the letter -- "I don't feel it's proper," he said -- and Serpe did not respond to a request for an interview.
Wilcox admitted that the TMA did not solicit the views of the Millers' attorneys before siding with HCA. Nor did the association consider the medical and ethical views of Texas doctors. "We don't poll our members," he said. "We never have."
To be sure, "tort reform" is of considerable interest to physicians, especially neonatologists. A survey by the MacLean Center for Clinical Medical Ethics in Chicago found that most NICU physicians expected to be sued if they practiced long enough. It's not surprising that those who had already been sued considered the claims against them to be baseless.
"In this context," the researchers concluded, "efforts to use malpractice claims to seek out evil-doers appear ill-conceived Our data suggest that malpractice in the NICU appears to function more like a lottery than like a mechanism for either quality assurance or just retribution."
For years, neonatal and pediatric research-ers have tried to develop clinical guidelines for the NICU, including when and how to resuscitate extremely premature newborns. But the effort has invariably run aground on the possible legal and ethical consequences. For example, a doctor might feel compelled to depart from the guidelines if they don't meet established medical procedures for a patient. But if they should end up in court, the patient's lawyer would undoubtedly argue that such guidelines are the standard of care and the doctor should have followed them.
In a March 2000 health care symposium in Arizona, HCA vice president Jim Hinton warned that information databases on malpractice claims could threaten the "immunity" of established clinical practices. Barry Furrow, director of Widener University's Health Law Institute, says that argument ignores the established practice of giving patients -- especially the parents of minor patients -- enough information to make an informed decision.
"For the last couple decades, we've been moving into an era of health care defined as 'consumer empowerment,' " Furrow says. "Patients are no longer passive. They are actively encouraged to collaborate with their doctors, and the obligation of the doctor is much greater to give patients a say in their own treatment."
The megagiant HCA was formed by the merger of Columbia Healthcare -- a corporation co-founded by Texas billionaire Richard Rainwater -- and the Tennessee-based Healthcare Corporation of America. The company owns more than 200 hospitals and surgical centers across the country -- more than 50 of them in Texas and about a dozen in the Houston area.
While it has been lauded for its economy-of-scale "cost strategies," the company also has been criticized for business practices that, in the view of many, compromise patient care. Among its most controversial innovations was to entice doctors to invest in the company. While this encourages practitioners to keep referrals within HCA's network, it also may encourage physicians to be overly concerned with the value of their investment.
In December 2000, the corporation agreed to pay $900 million to settle various claims, including that it had billed governments for care and padded the bills of adolescent psychiatric patients. Two executives were eventually sentenced to prison terms, although an appeals court recently overturned those convictions.
Those actions were unrelated to the Miller case, although the company's push for profits is worth considering before the aggressive resuscitation of all newborns might become the law in Texas.
Neonatology is among the most expensive field for medical treatments. Research suggests that the cost averages about $250,000 per infant for babies born before 26 weeks who survive in neonatal intensive care units for more than four months.
According to a study by the Medical College of Wisconsin, the since-repealed mandate requiring earlier discharges after delivery led many hospitals and physicians to transfer more newborns to the NICU, "thereby allowing for longer hospital stays to be reimbursed by insurance carriers." The study noted that while premature infants make up less than 7 percent of all births, they accounted for half of all hospital delivery charges.
The high cost of neonatal care has also cut the other way. In 1997, an analysis of 57,000 premature births in Philadelphia found that uninsured infants and those with Medicaid coverage were nearly twice as likely as insured infants to be transferred to other hospitals, in a practice known as patient dumping.
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