Karla Glodowski still cries when she talks about what happened to her 8-year-old son, Christopher.
In July 2002, the then-16-month-old stuck his finger in his older sister's bike chain, ripping it off from the tip to the first joint. When doctors intubated him for surgery, however, the asthmatic toddler suffered a bronchial spasm, depriving him of oxygen and ultimately leading to an anoxic brain injury.
Now Christopher goes to school, but mainly for the light stimulation and muscle movement. "He's never going to learn to read and to write and to add. He'll never be able to talk. His schooling is just therapy," his mother said.
More than a year after their boy's injury, the Glodowskis settled out of court with the hospital that treated Christopher, providing them with the means to take care of their son. But Karla fears that tort reform legislation proposed by Sen. Peter Knudson, R-Brigham City, will make it more difficult for other Utahns to seek the same relief.
"There are people that do bring lawsuits against doctors where they really shouldn't," she said. "There's also people like myself. We absolutely had a perfect little boy and we didn't get that back."
Knudson's bill -- SB 79 -- increases the level of evidence plaintiffs must show from "preponderance of evidence," to "clear and convincing evidence" for emergency room-related malpractice claims.
It also tightens the state's licensing laws to increase oversight of out-of-state medical expert witnesses, making them subject to disciplinary action by the Division of Occupational and Professional Licensing (DOPL) if they give testimony that is false or lacking scientific basis.
Experts coming here would automatically be granted a temporary license for the purpose of testifying, Knudson said, and any disciplinary actions taken against them would go on their record.
Proponents of the bill say it's an important step toward health reform, better protecting ER physicians from frivolous lawsuits and lowering health care costs by reducing defensive medicine. Critics worry, however, that it will give ER workers blanket immunity from even the most egregious medical malpractice claims.
"It's not just a little change -- clear and convincing evidence is a standard that is close to quasi criminal," said Charlie Thronson, a senior partner at Parsons, Behle & Latimer and an officer of the Utah Association for Justice (UAJ.)
Medical malpractice attorney Jack Ray, of Fabian & Clendenin, said subjecting out-of-state witnesses to disciplinary actions would discourage them from coming here to testify.
But Knudson -- who pointed out that these higher standards only apply to care delivered up to the time the patient is considered stabilized -- said his bill necessarily recognizes the "uniqueness" of what takes place in an emergency room.
ER doctors, he said, must make split-second decisions to save patients' lives without knowing their medical histories. And, under federal law, they don't have the option of sending patients elsewhere.
Cris Cowley, president of the Utah Medical Association (UMA) and an anesthesiologist at Intermountain Medical Center, said the legislation would help ensure there are an adequate number of specialty physicians covering calls in the ER.
Right now, the threat of litigation keeps many of them from accepting the job, he said.
"We are rapidly losing access to care, in particular to specialists in the ER, and we need to keep them coming (in)," Knudson said.
Cowley recalled one Utah case involving 42 defendants who collectively spent $330,000 just to make it to a pre-litigation hearing. The $5 million lawsuit was ultimately found to be non-meritorious and was settled for $10,000, most of it going toward covering the plaintiff's legal fees.
But just how common such lawsuits are is unclear.
Thronson said a recent poll of 500 UAJ members revealed that in 2007, only two malpractice lawsuits were filed against emergency departments; in 2008 and so far in 2009, that number is zero.
However, Michelle McOmber, the UMA's assistant executive vice president and director of government relations, disputed those figures: in 2008 alone, she said, 42 cases were brought against ERs.
"We're talking about one in four to five (ER) physicians who are sued every year," she said.
Over the years, multiple bills similar to Knudson's have been defeated in Utah, and in most other states where they have been proposed, Thronson said.
While the Senate Health and Human Services Committee advanced the legislation Thursday to the Senate floor for further debate, at least two of its members -- who voted in favor of it -- warned they'll attempt to derail it there.
One of them is Sen. Luz Robles, D-Salt Lake City, who is concerned about the lack of input from consumers. She also attacked the bill for being too incremental and not addressing comprehensive health reforms.
Tribune reporter Heather May contributed to this story.
