The Leapfrog Group's recommendations to help hospitals improve quality could boomerang and show up as standards in malpractice lawsuits against the hospitals, according to legal researchers at the Harvard School of Public Health, Boston.
The Washington, D.C.-based business group's recommendations have set standards for use of computerized physician order entry, referral to high-volume hospitals for certain procedures, and staffing ICUs with critical care specialists.
While the Leapfrog Group did not intend these recommendations to become legal standards, "developments in medical malpractice law suggest that the Leapfrog standards could be readily integrated into plaintiffs' cases," the researchers conclude in an article in the March/April issue of the policy journal Health Affairs.
To avoid litigation, Leapfrog officials have stated that the recommendations are "aspirational"--that is, they are goals that hospitals are striving toward and have not reached, write Michelle Mello, David Studdert and Troyen Brennan of the department of health policy and management at the school of public health.
"However, courts may well disregard such disclaimers and instead focus narrowly on questions of custom and reasonableness," the authors note.
They say courts that assess standards based on "custom" require that they must have been adopted by a majority of hospitals, which is far from the case now for the Leapfrog recommendations.
But in other jurisdictions, plaintiffs need only prove the "reasonableness" of the implementation of the standard, which probably includes an assessment of the cost, the authors write.
To limit the use of the reasonableness argument, the authors advise that Leapfrog might state that not all hospitals can comply with its recommendations and identify types of hospitals that cannot.
"This strategy would help hospitals ranked near the bottom in terms of resources but would penalize those at the top," they add.