ER docs in Utah may have an easier time maintaining their innocence in medical malpractice suits under a malpractice tort reform bill moving through the state Legislature.

House Bill 338, despite stiff resistance from patients and lawyers who deal with malpractice issues, passed a House committee in a 6-2 vote on Thursday. The bill would increase the standard of evidence required to win a malpractice case against an emergency room health care professional.

The purpose of the bill, according to its sponsor, Rep. Bradley Last, R-St George, is to help mitigate liability issues that are occurring in Utah. Last says that malpractice liability is pushing doctors out of emergency rooms. This is a nationwide trend leading to too few on-call specialists in emergency rooms everywhere.

The current standard for a malpractice suit requires that juries find the defendant guilty by what is termed a "preponderance of the evidence." That means that a jury has to find that one side has given weightier, more convincing testimony. It is sometimes referred to as a 51 percent standard.

Under HB 338, the standard would be changed to a "clear and convincing standard" which, according to Charles Thronson, senior partner and medical malpractice litigator at Parsons Behle and Latimer, is a quasi criminal standard. He said this standard is just below the "reasonable doubt" standard, and it would make it virtually impossible for the victims of malpractice to win a lawsuit.

"This bill is a de facto grant of immunity to everyone who works in an emergency department in every emergency department in the state ... for whatever mistakes or misconduct that may occur," Thronson said.

Thronson said this bill will make it so that even the slightest doubt on the part of a jury will remove liability from doctors.

The bill's effect would also extend to health care workers who perform services directly related to an ER visit, such as surgeons or even workers at urgent care centers.

Bennion Buchanan, a board certified emergency physician and president of the Utah Chapter of the American College of Emergency Physicians supports the bill because of "the gradual erosion of the ability to obtain specialty consultation for emergency department care." Buchanan said he has had to send patients away because his hospital did not have the resources to help them.

Twenty years ago, he said this would not have been an issue. "We are moving backwards."

Clark Newhall, a board certified ER physician and a lawyer practicing in the area of medical malpractice, said this bill will vastly increase the costs of medical care because patients will be sent to more costly ERs for what would normally be done in a doctor's office.

"Which doctor is going to be foolish enough to see a patient in their office, particularly a new patient, when they can send that patient to the emergency department and see that patient in the emergency department and be immunized from malpractice," Newhall said.

HB 338 Emergency Room Tort Reform Rep. Bradley Last, R-St. George. This bill increases the standard of evidence required for malpractice suits to "a clear and convincing" standard. Opposition claims that this bill provides doctors immunity from civil suits.

This story appeared in The Daily Herald on page A8.