COMMENTARY

8 Ways That ACOs Can Increase Your Malpractice Risk

Brian S. Kern, Esq.

Disclosures

September 09, 2011

In This Article

Introduction

The Centers for Medicare & Medicaid Services (CMS) has received a wave of commentary related to its proposed shared savings program; consequently, the final form of an "accountable care organization" (ACO) may end up looking far different from what was initially conceived by CMS. Regardless, the overriding goal of healthcare reform is that it will encourage providers to become more integrated, will reduce waste, prevent needless expenditures, and lead to better healthcare for all Americans.

However, threaded throughout the proposed regulations are certain expectations which may have the unintended consequence of increasing liability for all participating physicians.

1. More New Duties for Physicians

Medical negligence cases contain 4 key elements: a duty, a breach of that duty, causation, and damages. The latter 3 will not likely be directly affected by any new government program. However, under the proposed ACO model, physicians and ACOs alike will seemingly have far greater "duties," evidenced in a number of areas.

The proposed regulations state, "The ACO shall demonstrate to the Secretary that it meets patient-centeredness criteria specified by the Secretary, such as the use of patient and caregiver assessments or the use of individualized care plans." As a result, providers named in a lawsuit may not only need to defend their actions in light of the prevailing standards of care, but also explain the details of an individualized care plan and whether their duties within the care plan were met.

What's worse is that unless expressly stated otherwise, these individualized care plans may be discoverable by plaintiff attorneys. And assuming that they are relevant to the case, they may also be admissible in a trial. Plaintiffs will gain a significant advantage if they can demonstrate that a physician did not follow his or her own care plan.

A related issue will be whether a group's original ACO application will be discoverable. On page 93 of the proposed regulations, CMS states that, "ACOs would be required to describe in their application their process for evaluating the health needs of their Medicare population, including consideration of diversity, and a plan to address the needs of their Medicare population." Moreover, "we are proposing that ACOs must have systems in place to identify high-risk individuals and processes to develop individualized care plans for targeted patient populations."

Logically, an applicant will address each of these items in the original application, and if a physician does not provide treatment or care consistent with the expressly stated objectives, liability exposure may increase.

Although the issue of discoverability may pertain to some situations, it may be a moot point in others. CMS notes, "It is important that the ACO make available to the public information on its accountability for the quality, cost, and the overall care furnished to its assigned beneficiary population."

With all of these new duties and without a directive to shield all of this information from litigation, defending care in some instances may be difficult for an ACO.

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