A patient alleging medical malpractice by a health center must first submit claims to the US Department of Health and Human Services for review. The government can make a settlement offer or deny the claim. If the claim is denied or not settled, or a six-month review period expires, the patient may sue in federal court under the Federal Tort Claims Act, or FTCA.
To get that federal protection, health centers must have quality improvement and risk management programs and must show regulators that they’ve reviewed the professional credentials, malpractice claims, and license status of their physicians and other clinicians.
Ben Money, a senior vice president for the National Association of Community Health Centers, said the process improves care and directs scarce operating dollars towards the needs of patients, versus costly malpractice coverage.
“There are rigorous safeguards in place to ensure that health center grantees are in compliance and that patients are getting the very best care,” he said. “FTCA makes health centers more vigilant on quality and not less.”
About 86% of community health centers were covered under the FTCA for medical malpractice coverage as of September, said Christy Choi, a spokesperson for the Health Resources and Services Administration.
She said the government has implemented “robust quality improvement and patient safety efforts” as part of the program.
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The system makes collecting damages more difficult for patients than if they went to state courts for malpractice suits, said attorneys involved in cases against health centers. In addition to the prohibition against punitive damages, such cases are decided by federal judges instead of juries. The lack of a jury is important, they added, because judges are less likely to be swayed by emotion and that can mean lower dollar amounts in the awards.
Plaintiffs are also at a disadvantage because the federal government has unlimited resources to defend cases, unlike the patients and their attorneys, said Christopher Russomanno, a Miami attorney.
“These cases cost hundreds of thousands of dollars for us to get ready for trial,” said Jack Beam, the Illinois attorney who represented Rhonda Jones. “Our record was $900,000 in case costs.”
All these factors can make finding a lawyer an obstacle for patients.
Deborah Dodge, a Missouri lawyer, said some attorneys are reluctant to take the cases because the government caps their fees at 25% of the settlement amount. In contrast, plaintiff attorneys often take about 40% in successful state court malpractice cases.
Rhonda Jones was one of those who received a settlement. Her baby was transported to a children’s hospital soon after being born by emergency cesarean section at West Suburban Medical Center in the Chicago area in December 2016, according to her lawsuit. The baby, Alayna, was treated for brain damage from a lack of oxygen, and she now has cerebral palsy.
Jones showed signs of a high-risk delivery when she arrived at the hospital nearly 39 weeks pregnant: She was 40 years old, this was her 11th child, and she had severe preeclampsia and possibly gestational diabetes.
Her lawsuit alleged that she was not adequately monitored at the hospital and that surgery was not performed in time to prevent injury to Alayna.
Jones agreed to a $21 million settlement, $15 million of which was paid by the federal government because some of the doctors involved were employed by PCC Community Wellness Center. The health center and the hospital declined to comment. In court filings, the government and hospital denied wrongdoing.
The money — most of which is in a trust overseen by the court — provides for Alayna, who will require care throughout her life.
“Before what happened to Alayna, I loved them,” Jones said of the health center where she had gone for several of her previous pregnancies. “They were great for me because they would be open late at night when I was working.”
“I still would tell someone to go to PCC because maybe they will get the right doctors when they go to have their baby,” Jones added.
Kaiser Health News is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.
