A few small lines of a new bill meant to permanently fix the way Medicare pays doctors are grabbing attention among those who work on medical malpractice issues.
They're not likely to change much about malpractice suits against doctors, but they do touch on a larger debate over how it should be decided in such cases if doctors acted appropriately, some legal experts caution.
Buried deep within the bill meant to fix Medicare's sustainable growth-rate formula for paying doctors are these lines: “The development, recognition, or implementation of any guideline or other standard under any Federal health care provision shall not be construed—(A) to establish the standard of care or duty of care owed by a health care provider to a patient in any medical malpractice or medical product liability action or claim.”
A New York Times article this week said the bill would offer doctors new protections against medical malpractice lawsuits. The article quoted Brian Atchinson, president of the Physician Insurers Association of America, a trade group for insurers, saying the bill would “eliminate the uncertainty” about the use of federal guidelines in malpractice cases.
Doctors have long feared that litigious patients might use quality-of-care standards applied in federal health programs and the Affordable Care Act to prove malpractice allegations in court, according to the article. Doctors and insurance companies say those guidelines don't accurately reflect standards of care.
Atchinson, however, in the same article acknowledged that the bill's language would “simply preserve the status quo with respect to medical professional liability.”
Michael Frakes, an associate professor at Northwestern University who teaches torts and health law, also said the bill's language wouldn't likely change much about the pursuit of medical malpractice cases. But it hints at a broader, ongoing debate about whether medical malpractice suits should be able to rely on clinical guidelines rather than customs of care, as is done now.
Now, when looking at malpractice allegations, courts consider physicians' customary practices, Frakes said. That means both sides will often call experts to testify on customary standards in different situations.
That can have its drawbacks, Frakes said. It can be expensive and there can be a lot of variation in how physicians practice, he said.
Allowing malpractice cases to be based on clinical guidelines, however, also may have its negatives. It may seem cleaner and cheaper, but it also might suggest a kind-of “cookbook medicine” mentality, Frakes said. Also, there are now thousands of guidelines, prompting the question of which ones should be used.
Still, congressional lawmakers have introduced bills in the past intended to create “safe harbors” from malpractice liability for doctors who follow best practice guidelines, though those bills have not succeeded.
The federal Agency for Healthcare Research and Quality has also experimented with the idea, funding grants to states and health systems that agreed to create plans for patient-safety and medical liability reform, some of which include developing safe harbors for physicians.
This latest language in the SGR bill may represent yet another federal attempt to get involved in the issue.
Now, medical malpractice laws are exclusively state-based, said Donna Thiel, a partner at King & Spalding in Washington.
The New York Times article, however, suggests that some guidelines are possibly already being used in malpractice cases. It points to a website of a New Mexico law firm soliciting malpractice clients by pointing them to a Medicare list of major mistakes such as performing surgery on the wrong part of the body or the wrong patient. Medicare won't reimburse providers for services that include such events.
Some have indeed worried that such events from that list might be used in court cases alleging malpractice claims.
Frakes, however, said he doesn't think allowing or disallowing events from that federal list to be used in malpractice cases would necessarily change those cases' chances. The errors in some cases are so obvious, judges don't necessarily need a lot of outside guidance.
“Sometimes judges will say, 'I don't need an expert here,' ” Frakes said.
The SGR bill has passed the House and awaits hearing in the Senate when Congress returns from its spring recess April 13.