From AMERICAN MEDICAL NEWS
Doctors win first safe harbor against ACA use in liability suits
■ States and Congress are urged to pass legislation based on an AMA model bill to prevent health reform criteria from exposing doctors to medical liability.
By
Alicia Gallegos
amednews staff
— Posted April 15, 2013
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Physician leaders hope a first-of-its-kind bill
approved in Georgia protecting doctors from civil liability for
breaching federal health system reform requirements will be replicated
in other states.
Medical associations long have been
concerned that federal quality-of-care and payment reform measures,
such as those authorized by the Affordable Care Act, could be used to
fuel negligence accusations against individual physicians. The Georgia
law, drafted from American Medical Association model legislation,
prevents such health reform metrics from being used as evidence in
liability cases. Georgia's law states that payer guidelines and quality
criteria under federal law shall not establish a legal basis for
negligence or a standard of care for the purposes of determining medical
liability.
“We're saying if it's a breach in those
federal guidelines based on administrative behavior, let's make sure
that evidence is not admissible in court, and more than anything, let's
make sure that evidence is not being used as a determinant in the
standard of care,” said Marcus Downs, director of government relations
for the Medical Assn. of Georgia, which advocated for the enactment of
the shield law. “There could be some [administrative] wrongdoing, but it
is definitely not malpractice. It's definitely not negligence.”
The
passage of the Georgia bill, which at this article's deadline was
expected to be signed by Gov. Nathan Deal by the end of April, came as a
federal version of the legislation was being reintroduced in Congress.
The Standard of Care Protection Act would prohibit health system reform
provisions from being construed to establish a standard or duty of care
owed by a health professional to a patient in any liability case. A
similar version of the bill died in committee at the end of the last
Congress.
The Standard of Care Protection Act would
ensure that federal laws do not change the way health care professionals
practice medicine or treat patients through the threat of liability,
said Rep. Phil Gingrey, MD (R, Ga.), the bill's chief sponsor.
“This
legislation provides that lawsuits cannot be brought against health
care providers based simply on whether [they] followed national
guidelines created by the health care law,” Dr. Gingrey stated in an
email. “This bill reinforces my belief that medical decisions must be
made between patients and their doctors. The practice of medicine is not
one-size-fits-all. It must be protected from policies or rules that may
threaten a physician's ability to treat patients according to their
specific needs.”
The AMA supports the federal
legislation and also advocated for the Georgia law. In a statement, AMA
Board of Trustees member Patrice A. Harris, MD, praised Georgia's shield
law, saying federal reform statutes and regulations are intended to
enhance access to high-quality and efficient health care, not to justify
windfalls through lawsuits against physicians.
“Georgia
is the first state to take decisive action to prevent federal health
care reform laws and regulations from fueling the unrestricted excesses
of the state's broken medical liability system,” she said. “To hold the
line against tort abuse, Georgia relied on AMA model legislation to make
it clear that federal health care standards or guidelines cannot be
skewed to invent new legal actions against physicians.”
The
Georgia Trial Lawyers Assn. also worked with MAG on the state
legislation and was pleased with how the final bill turned out, said
Bill Clark, GTLA's director of political affairs. The association
successfully pushed for including a “goose-gander” provision in the bill
that also protects plaintiffs in medical liability suits from having
defendants introduce reform standard compliance as evidence.
“The
only way we were willing to allow the bill to go forward was to have it
go both ways,” Clark said. “If a physician can't be held accountable
for malpractice for failing to adhere to a payment guideline, then they
also shouldn't be able to use their compliance with a standard as
evidence that they complied with the standard of care. If it can't be
used against you as a sword, you also can't use it for a shield.”
The
director of policy for the American Assn. for Justice, Susan Steinman,
declined to comment on the Georgia law. The national association
represents trial attorneys.
Potential risks from reform
Without explicit legal protections, observers
said doctors who are sued for medical liability face various legal risks
from the ACA or other health system reform statutes.
To
find negligence, a plaintiff generally has to show — usually through
expert testimony — that his or her treatment did not meet the standard
of care observed by a reasonable physician, said Hal Dasinger, vice
president for government relations for The Doctors Company, a national
physician medical liability insurer. The Doctors Company supported the
Georgia law and is involved with promoting the federal legislation.
“Our
concern has been that plaintiff's counsel might attempt to use federal
guidelines developed, for example, to cost-effectively manage chronic
patients as evidence of negligence, by claiming that any treatment that
differed from the federal guidelines is beneath the standard of care,
rather than the result of an individual physician deciding what is in
the best interest of the patient,” Dasinger stated in an email.
Another
potential legal risk could come from the ACA's hospital value-based
purchasing program. Those provisions authorize payment adjustments for
certain hospitals based on designated health care performance criteria.
Whether a hospital-based physician met such criteria easily could be
raised in a medical negligence lawsuit to challenge the doctor's
credibility, Downs said.
Physicians' adherence to
hospital readmissions limits and prohibitions on payment for treating
hospital “never events” also are quality measures that could come up in
court. Plaintiffs could attempt to sway juries using such data, said Dan
Huff, a medical liability defense attorney based in Georgia.
Plaintiffs
alleging an undesired patient outcome could use the information to
argue that doctors “have no right to defend themselves or their actions,
because statutes and regulations have said these things should never
happen, and we're not going to pay them when they happen,” Huff said.
“If we have a gallbladder case we're defending about whether the
physician has met the standard of care, the plaintiff should not be
allowed to introduce evidence about the physician's readmissions rate,
complication rate or other issues that deal primarily with reimbursement
and payment.”
Federal shield bill redesigned
Despite their failed attempt to enact the
federal shield law in 2012, supporters are hopeful a newly redesigned
version of the measure will have a different outcome. The new bill has
been broadened beyond the provisions of the ACA and also would encompass
sections under the Social Security Act that deal with Medicare
payments.
Dr. Gingrey said the liability loopholes
created by the ACA should be addressed at the federal level. “The bill
makes clear that the care standards and guidelines detailed in federal
health care laws cannot be used to create new causes of legal action
against physicians, nor do they supersede state liability laws,” he
said.
The Doctor's Company was not aware of
legislation similar to Georgia's that is pending in other state
legislatures. However, Dasinger said it is only a matter of time before
other states follow the lead.
“With the victory in Georgia, it seems likely that other states will try to enact their own versions,” he said.
State
Rep. Edward Lindsey, a Republican who co-sponsored the Georgia law,
agreed. “I think it is good, pragmatic legislation, and I certainly
would think a lot of other states would look at it, just as we look at
other states when they pass pragmatic legislation.”
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