Malpractice Insurers Sneak Exception Into Quality Of Care Bill

It is no secret that healthcare costs are out of control. It also should not be a secret that one of the causes of increasing healthcare costs is rampant malpractice throughout the healthcare industry. One study by the Society of Actuaries found that "measureable" medical errors - i.e., the errors that are reported, which are just a fraction of the overall errors every year - directly caused $17.1 billion in avoidable follow-up care. (Another study found that the cost to society of preventable deaths alone was between $735 billion and $980 billion).

The smart folks at the Centers for Medicare and Medicaid Services (CMS) came up with one solution back in August 2007: they created a list of preventable errors (many of which are on the so-called "never events" list) and told hospitals and doctors that they would no longer pay for the additional costs associated with those preventable errors. For example, since February 2009, CMS has not paid for any costs arising from "wrong-site surgeries." Several states and private health insurance companies have followed suit.

It's easy these days to complain about "bureaucrats," but the truth is that many government agencies are doing good work. The Agency for Healthcare Research and Quality (AHRQ) has produced a wealth of information about medical standards that have reduced costs and saved lives. Recently, a bill was introduced into Congress that would require the government to measure the quality of healthcare provided by physicians, and to rate them accordingly, but, according to The New York Times, the malpractice insurance companies snuck in some sweetheart language:

WASHINGTON - A little-noticed provision of a bill passed by the House of Representatives with overwhelming bipartisan support would provide doctors new protections against medical malpractice lawsuits.

The bill, which requires the government to measure the quality of care that doctors provide and rate their performance on a scale of zero to 100, protects doctors by stipulating that the quality-of-care standards used in federal health programs - Medicare, Medicaid and the Affordable Care Act - cannot be used in malpractice cases.

The provision is nearly identical to legislative language recommended by doctors and their insurance companies. They contend that federal standards and guidelines do not accurately reflect the standard of care and should not be used to show negligence by a doctor or a hospital.

To draw an obvious analogy, this is like saying that, when a worker is injured by a contractor that blatantly violated the standards set by the Occupational Safety and Health Administration (OSHA), the worker can't show the OSHA standards at trial to prove negligence. Of course they can. An OSHA violation isn't the end-all-be-all of occupational safety, but it is undeniably relevant in determining the standard of care.

Over forty years ago, our firm litigated and won the leading case on the "standard of care" in medical malpractice cases in Pennsylvania. As Justice Roberts wrote in his concurring opinion, "The standard of care required of a specialist or general practitioner should be that of a reasonable specialist or general practitioner in similar circumstances practicing medicine in light of present day scientific knowledge." Incollingo v. Ewing et al., 444 Pa. 263, 299 (1971). This has long been the rule across most of the country. See, e.g., Landeros v. Flood, 551 P. 2d 389, 408 (Cal. 1976)("we have consistently held that a physician is required to possess and exercise, in both diagnosis and treatment, that reasonable degree of knowledge and skill which is ordinarily possessed and exercised by other members of his profession in similar circumstances.").

Are the standards carefully developed by CMS and AHRQ through years of research, scholarly input, and feedback from the healthcare industry relevant to that question? Of course! If the defendant doctor or their expert witnesses believe otherwise, they’re free to tell the jury how wrong CMS and AHRQ are.

Unsurprisingly, this special-interest giveaway is coming from the same legislators who claim they believe in "federalism" and "limited federal government." If they really believe that, why are they trying to set up a federal law that limits states' rights to determine what evidence they will or will not admit in their own medical malpractice trials? If a state doesn't want juries to look to the CMS guidelines, the state legislators and state judges can decide that for themselves.


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