As Congress drafted elements of the Patient Protection and Affordable Care Act that would tie Medicare payments to quality metrics, the House of Representatives added a provision that would shield physicians from lawsuits tied to their failure to meet those marks.
That was dropped from the version that became law, but Georgia has resurrected the idea with the help of the American Medical Association. On May 6, Gov. Nathan Deal signed legislation that prevents administrative payment guidelines from being introduced as the standard of care in malpractice suits.
Donald Palmisano Jr., executive director of the Medical Association of Georgia, said the law is necessary because payment guidelines, such as the nonpayment for hospital-acquired conditions or what patient safety advocates call “Never Events,” were being introduced into legal arguments in medical liability suits. “That's not a standard-of-care issue, that's a payment issue,” Palmisano said. “The standard of care should not be determined by any public or private payment guidelines; it should be left to the experts.”
The law was based on model legislation drafted by the AMA's Advocacy Resource Center. The AMA issued a news release quoting Dr. Patrice Harris, an AMA board member, who said the measure was designed “to make it clear that federal standards or guidelines designed to enhance access to high-quality health care cannot be used to invent new legal actions against physicians.”
Georgia lawmakers were the first to introduce a bill based on the model legislation, and the AMA hopes that others will follow.
“The decisive action of Georgia lawmakers holds the line against medical liability abuse and helps avert more civil actions against physicians, which increase medical liability insurance premiums and reduce access to healthcare for Georgia's patients,” said Harris, an Atlanta psychiatrist.
Palmisano said his organization worked with the Georgia Trial Lawyers Association to craft the final language on the bill.
William Clark, director of political affairs for the lawyers association, emphasized that the law does not create a safe harbor for doctors who failed to meet appropriate standards of care.
“While we work steadfastly to shield patients from negligent medical care—especially given that 98,000 Americans die annually from preventable medical malpractice—we did not mind helping the physicians enact a bill that will prevent someone from suing a doctor for the doctor's failure to comply with a payment guideline, something that has nothing to do with the real question of whether the doctor failed to comply with the medical standard of care,” Clark said in an e-mail. He added, however, that the law goes both ways. Doctors cannot argue compliance with payment guideline as evidence that he or she provided appropriate care.
Clark also said the trial lawyers association is not aware of a single instance in which a Georgia medical malpractice suit was based on a doctor's failure to meet a payment guideline.
In March, U.S. Rep. Phil Gingrey (R-Ga.), a physician, introduced a bill called the Standard of Care Protection Act of 2013, which would similarly insulate physicians from liability claims tied to elements of the ACA. Follow Andis Robeznieks on Twitter: @MHARobeznieks