COMMENTARY

8 Ways That ACOs Can Increase Your Malpractice Risk

Brian S. Kern, Esq.

Disclosures

September 09, 2011

In This Article

Changing Standards

2. Difficult New Standards of Care

The proposed regulations will arguably raise the standard of care that participating providers will have to meet. One of the themes in the proposed program is that ACOs should incorporate "evidence-based medicine." While an understandable ideal, demonstrating evidence-based medicine requires considerable documentation, as well as advanced procedures and processes. By creating such procedures, an ACO may simultaneously create a heightened standard of care. Deviating from one's own documented standard of care is tough to defend.

By creating such procedures, ACOs may simultaneously create a heightened standard of care. Deviating from this standard may become tough to defend.

3. More Causes of Action

To a large degree, ACOs are testing the collective ability of primary care providers to reduce "unnecessary" expenditures, such as hospital admissions and visits to specialists. If successful, the associated ACO will share in the savings. If unsuccessful, the associated ACO will be penalized.

This payment model runs the risk of incentivizing physicians to not refer patients for needed treatment and may expose them to a type of "underutilization" claim. Failing to order necessary tests is already a theory of negligence in many jurisdictions but could be expanded to address these situations. Similar theories of negligence may include premature discharges or even some variation of patient dumping.

Patient dumping generally refers to a hospital's refusal to admit an uninsured patient so as not to have to provide uncompensated care. It follows that a hospital may not want to admit an ACO beneficiary if it could jeopardize incentive payments. This practice could lead to an unnecessary delay in diagnosing a time-sensitive condition and increase liability for an ACO.

4. More Stringent Informed Consent

An entirely separate theory of medical negligence is the failure to provide proper informed consent. One of the central themes of an ACO is to coordinate care – at the joint direction of the provider and patient. Indeed, one of the primary goals of an ACO is to "put the beneficiary and family at the center of all its activities. It will honor individual preferences, values, backgrounds, resources, and skills, and it will thoroughly engage people in shared decision-making about diagnostic and therapeutic options." If this language is ultimately adopted, ACO participants may be held to these standards, which are arguably stricter than existing informed-consent standards.

Another facet of informed consent is informed choice. In other words, patients cannot give meaningful consent to a course of treatment without knowing the alternatives. The proposed regulations refer to this as "patient engagement," noting that "measures for promoting patient engagement may include, but are not limited to, the use of decision support tools and shared decision making methods with which the patient can assess the merits of various treatment options in the context of his or her values and convictions."

Under this approach, physicians may not only need to justify that they proceeded with treatment consistent with prevailing standards of care, but also demonstrate that a patient understood all reasonable alternatives and made decisions accordingly. Failing to offer alternative treatments can already lead to liability; if CMS explicitly adds to already burdensome requirements, it may increase a provider's vulnerability to a claim.

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