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The WSMA advocates for physicians in the court system by ensuring a physician-centric perspective is considered during litigation.

Legal

The WSMA advocates for physicians' interests in the court system by initiating lawsuits and by filing "friend of the court," or amicus curiae, briefs that argue a physician-centric perspective.

The drafting of such briefs is resource intensive, and the WSMA generally retains outside counsel who specialize in writing these briefs. Because of the cost, the WSMA must be selective in allocating its resources to amicus briefs. Funding for these services comes primarily from the WSMA, though the WSMA often partners with other organizations such as the Washington State Hospital Association, Physicians Insurance, and the American Medical Association to share the expenditure of resources and increase the impact of the amicus arguments.

Amicus Curiae Case Selection Criteria

When determining whether or not to provide assistance to a particular litigant, we consider:

  • The parties directly involved and the merits of their claims.
  • Whether the legal issues extend or clarify the case law on a matter relevant to Washington physicians generally.
  • The precedential value of the case (i.e., level of court, jurisdiction, and nature of legal proceeding).
  • Whether the legal argument is likely to succeed.
  • The expense the WSMA would incur.
  • The probability that other organizations will partner with the WSMA to share the expense.
  • The extent of non-financial costs (e.g., whether litigation makes political and other options less feasible, how it will affect our relationship with important individuals and groups).
  • The membership status of the requesting individual.
  • Whether other, non-litigious options are available.

Recent Cases

Davies v. MultiCare

In June 2022, the Supreme Court of the State of Washington made the right decision to keep the legal theories of medical malpractice and informed consent separate. The appeals court in Davies v. MultiCare had originally ruled that failure to offer a patient a study that you did not feel was indicated was a failure of informed consent. This ruling had the potential to dramatically change the nature of patient care by requiring disclosure of an infinite list of tests that you did not do. It also would invite patients to potentially demand inappropriate and dangerous tests with the threat of failure to provide informed consent if not offered.

Due to the potential danger to patients and physicians alike, your WSMA engaged in an amicus brief in support of the defendants to the Supreme Court to overturn this ruling. The court wisely overruled the appeals court and once more established the difference between medical malpractice and informed consent. Informed consent cannot be used as a theory for failure to test or treat for a condition that you did not diagnose and ruled out, either clinically or through other testing. Cases of failure to diagnose will remain an issue in medical malpractice as they had been previously. In the end, keep doing great medical care and the appropriate indicated tests without worry that failure to offer every test will be a failure of informed consent. -Nathan Schlicher, MD, JD

Federal judge rules for physicians in lawsuit challenging No Surprises Act

In a clear victory for the physician community, in February 2022, the U.S. District Court in the Eastern District of Texas granted the Texas Medical Association's motion for summary judgment in its lawsuit challenging the independent dispute resolution provisions of the federal No Surprises Act. The ruling is the best scenario outcome for this litigation, which the WSMA supported by joining with 12 other state medical associations in an amicus brief file by the Physicians Advocacy Institute.

As a reminder, federal agencies have been working on rulemakings to implement the federal No Surprises Act, which went into effect on Jan. 1, 2022. In September 2021, federal agencies issued a set of rules that dramatically favored insurance carriers by directing independent dispute resolution entities to assume the qualified payment amount as a reasonable out-of-network rate, potentially skewing the impact of the law on physicians and shifting even more leverage and profits to insurers. Organized medicine reacted swiftly to oppose this interpretation of the independent dispute resolution provision, filing lawsuits and motions to stay against the imbalanced interpretation, leading to this week's successful outcome.

In the ruling, the federal district court judge agreed that the portion of the No Surprises Act rule challenged by the TMA lawsuit was both procedurally and substantively flawed. While the ruling figures to be appealed and there are other legal challenges to the law pending, this preliminary win for the physician community is welcome news and an encouraging start to the legal fight over the implementation of the federal balance billing legislation.

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