The final word: “Having COPIC and CMS in my corner tipped the scales in my favor”

Thursday, January 01, 2015 11:42 AM

by Jason Kelly, MD

The Colorado Medical Society and COPIC have had a close and mutually reinforcing relationship for 30 years, but many physicians are not aware of the powerful and positive role that their collaboration has on our profession. I had the opportunity to experience how this partnership benefits Colorado physicians firsthand when I was involved in a catastrophic outcome from a liver biopsy.

A week after the biopsy, the patient’s girlfriend told me the patient had been using cocaine to self-medicate for the pain that brought him into the hospital, and she wondered if this could have contributed to the event. When the family sued for negligence, the cocaine use became a central issue at the trial.

Specifically, there was the question of whether cocaine use could be admitted as evidence, because I had been made aware of it by a third party and thus hearsay. Hearsay is generally not admissible, but there is a medical exception, because it is assumed that people want to get better and therefore tell their doctors the truth. The trial judge felt that the cocaine was “intensely prejudicial,” but also “intensely probative” of the issues. She admitted the evidence.

After winning the trial, everyone expected an appeal; we did not expect that it would succeed. We were wrong. The Court of Appeals ruled that the hearsay exception related only to statements in the interest of prospectively treating the patient, and that statements to discover what had already happened were not covered.

The opinion narrowed how the hearsay exception could be used, and set a precedent for Colorado that would be cited around the country. The case now became about the more global issue of what evidence physicians could use to defend themselves in court.

Here is where the strength of organized medicine and the relationship between COPIC and CMS became critical. CMS and the AMA Litigation Center filed an amicus brief with the Colorado Supreme Court, detailing the importance of the case and the precedent it would set. CMS also teamed with the COPIC lawyers to organize amicus briefs by the Regents of the University of Colorado, the Colorado Chapter of Emergency Physicians, the Colorado Radiologic Society and the Colorado Defense Lawyers Association.

This, along with excellent legal work by my attorneys, led the Colorado Supreme Court to reverse the Court of Appeals, upholding the medical exception as it had stood for many years. The court recognized that while the cocaine evidence was “intensely prejudicial,” it was not “unfairly prejudicial.” I expect those phrases will be used in more than a few legal briefs going forward.

Being in a lawsuit is grueling. Many physicians would rather settle than be dragged through a trial. The tireless support I received from CMS and COPIC was a tremendous psychological lift.

COPIC spared no effort or expense to defend me. A more commercial insurance company likely would have assessed the costs and potential losses in my case and decided it was not worth the effort, no matter who was right.

In addition to my family and legal team, support from COPIC, CMS and the AMA Litigation Center gave me the boost I needed to believe we could still be heard – and win – in the Supreme Court. It is critical that we do not underestimate the power of these organizations to keep physicians in the fight – a necessity if we are to see important legal victories like mine in the future.

Like many physicians, before this case I did not appreciate the importance of organizations like COPIC and CMS, particularly when they work in concert. More and more though, physicians sit across the table from massive organizations, whether they be hospital systems, the government, insurance companies or – in my case – a law firm. We do not have the resources to counterbalance these huge entities by ourselves. However the voices of thousands of physicians carry much more weight than the individual. I have no doubt that the scales tipped in my favor because I had an indefatigable insurance company like COPIC and a respected physician organization like CMS in my corner, and for that I am incredibly grateful.