Health reform medical liability shield a model of good sense
■ Georgia now protects its physicians from a possible liability loophole in the ACA. The rest of the nation must do the same.
Posted June 10, 2013.
The Affordable Care Act will bring new insurance coverage to tens of millions of people, put a needed focus on preventive care, and start modernizing delivery and payment systems that could use an overhaul. These are large-scale, important changes for patients and the physicians who serve them.
But no single reform law is going to be complete or perfect, especially not one with goals as sweeping as the ACA’s. Physicians need to remain diligent that the move toward strengthening the health system doesn’t give inadvertent openings to those who would attempt to exploit its weaknesses.
One potential loophole exists in the federal care quality and payment reform provisions authorized by the ACA. On their face, they are intended to move away from a system that pays for care based solely on the volume of services and toward one that takes quality of care into consideration — certainly an admirable goal. Unfortunately, some might seek to inflate these provisions into something they were not meant to be by arguing that they establish new federal standards of care when it comes to determining medical liability in court cases.
That loophole now is closed in Georgia, thanks in large part to the American Medical Association. Using model legislation developed by the AMA’s Advocacy Resource Center, the state recently enacted into law the State Physician Shield Act. It states simply that federal care guidelines and quality criteria — whether under the ACA or another law — do not establish a legal basis for physician negligence or a standard of care to determine medical liability. Only competent expert testimony permitted in court can establish such a standard.
This may seem like a no-brainer, but the broken state of the medical liability system makes it clear that explicit protections are needed. Trial lawyers have demonstrated that they will take advantage of any possible opening in the pursuit of liability windfalls. The quality and payment reform provisions of the ACA and other federal laws cannot be allowed to become fuel for more frivolous lawsuits against physicians that will raise liability insurance premiums and choke off patient access to care.
The threat of the potential loophole is not an idle one. Take the example of a medical liability case involving a doctor at a hospital that received lower Medicare pay rates based on the government’s assessment that its 30-day readmission rates are too high. Any physician or other health delivery expert knows there could be a multitude of cogent reasons why more recently discharged patients are returning to the hospital that have little to do with the quality of care they received there.
But with some sleight of hand by a plaintiff’s lawyer, a jury or judge might be led to believe incorrectly that the lower Medicare rates mean a hospital has failed to meet some sort of federal standard of care. That type of misunderstanding would poison the well for the physician involved and make it impossible for him or her to receive a fair trial.
In some cases, for very appropriate reasons, a physician practice simply will be unable to participate in a quality initiative authorized by a health system reform provision. That situation may be considered noncompliance by the federal government, but it cannot be allowed to be considered evidence of incompetence when one of those physicians faces a medical lawsuit.
Georgia’s lawmakers and governor recognized the threat of these situations when they approved the State Physician Shield Act, but that covers only 1/50th of the nation. Just as many states have recognized the shortcomings of the medical liability system by implementing damage caps and other needed tort reforms, more states need to follow Georgia’s lead and pass shield legislation of their own. The AMA already has put forward the model legislation; state lawmakers simply need to put forward the commitment to get it on the books.
Federal lawmakers also can help physicians hold the line against medical liability abuse by approving the Standard of Care Protection Act, which would accomplish the same goals as the Georgia legislation on a national scale. Congress and the White House have demonstrated their willingness to address shortcomings in the ACA through corrective legislation. This is the perfect example of a situation in which such a revision is the clear, sensible path of action.