Federal quality metrics – integrated into the Affordable Care Act to improve and standardize care – are posing unintended legal risks for physicians, medical malpractice experts noted.
"The Affordable Care Act itself doesn’t identify medical malpractice issues," according to Aldo Leiva, a health law attorney in Coral Gables, Fla. "The concern that has arisen has been whether or not the content or language in the [ACA] can be used by plaintiffs’ lawyers against doctors by creating an additional standard of care."
Attorneys and insurers already are hearing reports of federal reimbursement decisions being introduced into medical malpractice cases. In such instances, lawyers use federal payment denials to bolster their claims of negligence, according to Mike Stinson, director of government relations for PIAA, a national trade association representing medical liability insurers.
Hospital readmission standards are one such federal quality measurement that could unfairly impact doctors in court, said Brian K. Atchinson, PIAA president and CEO. The ACA reduces payments to hospitals considered to have excessive readmissions.
"The mere fact that there will be many thousands of people that will be readmitted to a hospital within 30 days, that should not be evidence of inadequate care," Mr. Atchinson said.
Penalties regarding hospital-acquired conditions and value-based incentive payments also could impact lawsuits.
Lawyers are creative and will search for clever ways to further their argument, Mr. Leiva said. "There’s nothing to stop [them] from using that to move the needle a little further" to support their claim."
State legislatures are working to remedy this growing legal jeopardy. Georgia recently passed laws banning federal quality measures from being used to create standards in medical liability cases. Florida has had a similar law on the books since 2011.
Before Georgia’s law was enacted in May, plaintiffs’ attorneys had sought to have information about Medicare reimbursement denials presented to medical malpractice juries, according to Joseph L. Cregan, senior vice president and general counsel for MAG Mutual Insurance, a medical liability insurer that operates in the Southeast.
"Obviously, placing these issues before the jury could adversely affect our physician insureds, because it ... encourages a juror to impose a simplistic analysis instead of the proper legal analysis," Mr. Cregan said. "Our desire was that H.B. 499 would clarify that traditional ‘reasonable physician’ standard of care analysis remains the fundamental key to judging our Georgia physicians."
Since Georgia’s enactment of H.B. 499, other states, including Alabama and Mississippi, have expressed interest in considering similar laws, Mr. Cregan said.
"I think you are going to see the H.B. 499 idea introduced in other state legislatures in 2014, and I think you will see the issue debated and passed in a number of states," he said.
Others are looking toward federal legislation as a solution to unintentional ACA legal traps.
H.R. 1473, the Standard of Care Protection Act, was introduced by Rep. Phil Gingrey (R-Ga.), and is supported by the American Medical Association. It is currently under consideration by subcommittees of the Energy and Commerce Commiteee and the Judiciary Committee; no Senate companion has been introduced.
The bill would prevent ACA guidelines and standards from being construed to establish a standard of care in medical malpractice cases. It also would prevent those provisions from preempting state laws that govern medical liability.
"There should be no room for misinterpretation of the [ACA] to create new causes of action or trump state medical malpractice laws," Rep. Gloria Negrete McLeod (D-Calif.), a cosponsor of the bill, said in a statement.
The bill also was included in H.R. 2810, a bill to replace the Medicare Sustainable Growth Rate formula, which was passed out of the Energy and Commerce Committee in July. Proponents are cautiously optimistic about the bill’s success.
"Over the autumn, we’re going to be paying close attention to how this legislation proceeds," Mr. Atchinson of PIAA said. "We certainly believe it would be good for both the physicians and the nation’s patients."