Hospital Defamation

In Dr. X’s case, St. Vincent Medical Group accused Dr. X of having alcohol on her breath while on-call.  The hospital placed her on leave and demanded she submit to alcohol assessment.  The assessment led to an evaluation and at least six weeks of inpatient treatment.

Dr. X sued the hospital, nurse and hospital group for defamation, fraud, constructive fraud, negligent misrepresentation and tortious interference with an employment relationship.  A jury found in Dr. X’s favor and awarded her $4.75 Million.

Curiously, none of the other nurses, doctors or other personnel at the hospital reported smelling any odor of alcohol on Dr. X and Dr. X continued that night and into the next day receiving telephone calls, visiting the hospital and dealing with her on-call duties.

Since the decision was a jury verdict, one can only guess at some of the causes for this decision.  Reviewing the facts of the case as presented by the Appellate Court, it appears likely that the jury based its decision on a number of items:

• only one person amongst a number of people who encountered Dr. X on the fateful day/night reported smelling alcohol while the others did not;
• the hospital took no action to test Dr. X immediately for alcohol impairment upon the one nurse’s initial claim that she smelled alcohol on Dr. X’s breath, rather days went by preventing any scientific determination of whether Dr. X was or was not impaired on the date of the initial nurse report; and
• the cascade of events that followed the one unsubstantiated report of Dr. X’s breath smelling like alcohol lead to suspension of Dr. X, months of inpatient treatment required by the licensing board and hospital, significant costs and professional humiliation.

What can we learn from this case?  First, that if such a report is made, immediate action needs to be taken so that the truth or non-truth of such a report can be determined.  Second, the jury likely felt the hospital and the entire licensing structure treated Dr. X unnecessarily harshly and cruelly.  The mere claim that on one single day the doctor had the smell of alcohol on her breath while on-call (and an unsubstantiated claim at that) should not, in the jury’s opinion, have led to suspension, forced inpatient treatment and all of the other costs, embarrassment and unprofessional treatment that the jury seemed to have found.

Docs on the Line

The No Surprises Act not only places limits on the ability of hospitals and other providers to impose costs on patients outside insurable amounts, but also includes a specific requirement that requires providers to give uninsured or self-paid patients a “good faith estimate” of forthcoming charges for care when a procedure is scheduled or upon a patient’s request.  In addition, physicians are also required to give estimates for most insured patients.

The No Surprises Act also includes an arbitration process to handle charge disputes for any amount above the “good faith” estimate.

As the deadline (January 1, 2023) approaches, providers are beginning to understand the difficulty of providing this information to patients.  Common sense tells us that a good faith estimate would be a generally accurate statement of the entire cost for a procedure at a particular provider office or hospital.  Hospitals and other providers when they began to provide such estimates are understanding what patients have been facing for years.  Getting reliable healthcare cost estimates and information in advance is nearly impossible.  The absolute complexity of healthcare and the inability of healthcare providers to provide fixed price estimates makes this a difficult and challenging issue.

For years providers and hospitals have simply told patients to pay whatever the hospital or provider decided to charge.  For a non-hospital, non-provider or non-insurer person to look at a medical bill and to tell whether it is correct is nearly impossible.

Now that providers are having to step towards responsibility for telling a patient in advance what the charges will be for a procedure or procedures now requires them to come face-to-face with the difficulty of pricing a non-standardized process.

Additionally, at least to date, HHS has not set forth any barriers, standards or definitions for this effort and there, as of yet, appears to be little help from easily available and affordable software.