Push to Keep ACA Guidelines out of Malpractice Cases

April 19, 2013

The Affordable Care Act (ACA) is accelerating the switch from fee-for-service reimbursement to pay-for-performance, and organized medicine is worried about the medical liability implications.

What if a physician scores poorly on ACA-driven performance measures regarding his or her care for patients with diabetes, for example? Do low grades give those patients sufficient grounds to sue the physician for malpractice? Could poor performance data be introduced as evidence to help support a claim of medical negligence?

Not in Georgia, at least, under a bill passed earlier this month by the state legislature and awaiting the signature of Governor Nathan Deal. The bill says that any medical guideline or reimbursement criteria developed or implemented under any federal law cannot be construed as a standard of care to establish a physicians' negligence in a medical malpractice or product liability suit. Nor can a sued physician's compliance with these guidelines or criteria be introduced as evidence in his or her favor.

The Georgia bill is based on model legislation prepared for lawmakers nationwide by the American Medical Association (AMA). In addition to hoping that other states will follow Georgia's lead, the AMA supports a similar bipartisan bill on the federal level recently introduced by Rep. Phil Gingrey, MD (R-GA), and Rep. Henry Cuellar (D-TX). Their legislation, called the Standard of Care Protection Act, would not allow malpractice plaintiffs to treat a guideline related to the ACA or Medicare and Medicaid statutes as a standard of care. In addition, no provision of the ACA, nor any amendment it makes to federal law, could trump state laws governing medical liability.

"The legislation...would effectively clarify that lawsuits could not be based simply on whether medical providers followed the national guidelines created in our health laws," Dr. Gingrey said in a recent letter to his House colleagues. "This bipartisan piece of legislation simply reinforces the practice that medical decisions be left to patients and their doctors."

Dr. Gingrey, cochair of the GOP Doctors Caucus, had introduced a similar bill in 2011 that targeted only ACA-related guidelines. It was warmly applauded at that time by the AMA.

"Physicians should not have to worry about potential new causes of action or liability exposure in an age of developing and implementing new ways to improve the quality and efficiencies of care," said Michael Maves, MD, then the AMA's executive vice president and chief executive officer, in a press release.

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