NATIONAL HARBOR, MD. — Fears about liability appear to be one of several factors undercutting the ability and desire of physicians to provide care in nursing homes.

That conclusion comes from a study funded jointly by the Southern Illinois University School of Law, the California HealthCare Foundation, and the Commonwealth Fund. The findings suggest that legal reforms, as well as changes in practice conditions, could make nursing homes more appealing settings for physicians, said Marshall B. Kapp, J.D., M.P.H., a professor at the law school's Center for Health Policy and Law, Carbondale, Ill.

“Many facilities have difficulty attracting and retaining high-quality, conscientious medical directors and attending physicians in part because of physicians' legal anxieties,” said Mr. Kapp, who did the study's survey and reported its results at the annual meeting of the Gerontological Society of America.

He conducted 44 structured telephone interviews with 20 physicians, 6 advocacy organization representatives, 5 trade association officials, 4 nursing home administrators, 4 health services researchers, 2 attorneys, 2 insurance industry representatives, and 1 nurse.

The aim was to elicit in-depth information about physicians' apprehensions regarding their own personal legal exposure, the reasons for those fears and whether they're justified, and the consequences of such fears for both physicians and nursing home residents.

Overall, study participants agreed that nursing home residents today are sicker, older, more disabled, and more in need of medical care than in the past. On the other hand, Mr. Kapp said, wide geographic variation emerged in both the degree of liability anxiety felt by physicians and in the accuracy of their concerns. Attitudes ranged from “almost paranoia” in California to “not worried enough” about liability in New York, he said.

Physicians' anxieties were often influenced by factors such as attorney advertising, media coverage of nursing homes, and residents' and families' threats to sue.

Whether or not nursing homes have “deep pockets” to pay liability claims also contributes to physicians' concerns about their own liability. Some nursing homes have made themselves unlikely defendants in malpractice lawsuits by purchasing less insurance or in some cases even “going bare,” Mr. Kapp said. He contrasted this financial tactic for reducing facilities' legal vulnerability to the improvements in quality and safety that are now being made at many nursing homes.

Some state laws have further limited nursing home liability, thereby leaving physicians as the primary targets for lawsuits, Mr. Kapp said. For example, tort reform in Florida increased legal protection for nursing homes but resulted in almost a doubling since 2001 in the proportion of nursing home-related lawsuits in which individuals, including physicians, were named as defendants, from 13.5% to 26.5%.

In some states, physicians have had problems obtaining liability insurance for their actions as medical directors or attendings because insurance companies have increasingly pulled out of the nursing home market. Affordability of coverage for nursing home care also was cited as a problem, Mr. Kapp reported.

In addition, physicians complained that insufficient nursing home staffing and training often yield unreliable information about residents' health status and poor follow-through on the doctors' orders. Physicians practicing in nursing homes whose workforce includes trained physician extenders, especially geriatric nurse practitioners, were less apprehensive than others about their legal liability.

“The overwhelming sentiment was that while we do need physicians, we can greatly improve quality of care and reduce liability with the use of physician extenders,” Mr. Kapp said.

Physicians' legal anxieties can result in positive consequences for nursing home residents, such as improvements in safety, patient rights, and documentation of care, Mr. Kapp said. However, negative consequences are also common. Some physicians have curtailed nursing home work or abandoned it because of legal anxieties, he noted. This problem is particularly acute in California.

Physicians' legal anxieties also can result in overtreatment of residents, including unnecessary transfers to hospitals, or undertreatment, especially with pain medication. Nursing home “overprotectiveness” may result in a loss of autonomy for residents, Mr. Kapp said.

The survey also showed that legal anxieties aren't the only reason physicians limit or avoid nursing home involvement. Other factors cited include low prestige for the work, less control over care than in hospital or office settings, professional isolation, poor compensation, administrative and regulatory burdens on medical directors, and patient populations prone to bad outcomes, no matter the quality of care.

These issues, as well as liability, require attention, Mr. Kapp said. He cited the nursing home-physician reimbursement mechanisms of Medicare, Medicaid, and private insurers as problematic.

In fact, Mr. Kapp said he was surprised by the strength of the issues, beyond liability concerns, that prompt physicians to avoid nursing home care. “I thought that if we could change [liability laws], it would solve the problem. But really, that's only one small piece of a larger puzzle.”

A full report of the study is available at www.chcf.org/documents/chronicdisease/PhysicianLiability.pdf

Liability Can Prompt Docs To Avoid Nursing Homes