Positive Outlook - Issue 10 - June 2015

Doctors Applaud SGR Bill's Malpractice Protection

Positive Move in the Malpractice Arena

Medical groups are applauding the overwhelming vote in the US Senate Tuesday to prohibit plaintiffs from using a physician's performance on federal quality measures in a medical malpractice lawsuit.

The provision included in the legislation to repeal the Medicare Sustainable Growth Rate (SGR) formula would stop plaintiffs from using a doctor's quality improvement performance as the sole basis for a medical liability lawsuit or to prove negligence.

Language in the law states that "the development, recognition, or implementation of any federal health care guideline or standard shall not be construed to establish a duty of care in medical malpractice claims."[1]

The bill was passed in the Senate by a vote of 92-8 and was previously approved by the House of Representatives in a 392-37 vote. President Obama has said that he will sign the legislation. Before the law was passed, medical leaders worried that guidelines and quality criteria could be used in new legal actions against physicians.

For example, plaintiffs won't be able to include in a lawsuit the fact that a doctor didn't earn an incentive under the Physician Quality Reporting System (PQRS), or if a preventive care service covered under the Affordable Care Act (ACA),

such as screenings, isn't performed and the patient is ultimately diagnosed with a disease. The fact of ACA coverage of the service can't be used to demonstrate malpractice or negligence.

Patients Can't Sue Doctors on the Basis of Quality Data

"The new law prohibits a plaintiff from using the doctor's meaningful use, PQRS, or other performance in a quality program as a cause of action — i.e., that if a doctor missed earning an incentive, that fact alone cannot be used as the sole basis for a medical liability claim or per se negligence," said American Medical Association CEO and executive vice president James L. Madara, MD, in an emailed statement to this author. "The reasoning for this protection is not to bar valid malpractice cases, but a recognition that some of the quality measures used by HHS [Department of Health and Human Services] focus on processes rather than outcomes. It cannot be assumed that failure to report under these programs is an indication of substandard care. It is clear that explicit protections are needed to hold the line against a medical liability system that invites abuse."

The American College of Obstetricians and Gynecologists (ACOG) also heralded the measure but said it doesn't go far enough to protect doctors from malpractice suits. When asked for a statement, ACOG replied in an email: "ACOG is pleased that a provision in the SGR package was included to address standard of care protection, and continues to support prompt passage of SGR repeal legislation."

"We will continue to seek comprehensive and alternative medical liability reforms, and we hope that Representatives Barr and Bera reintroduce their 'safe harbor' bill soon," ACOG said. "Their legislation, the Saving Lives, Saving Costs Act, would improve quality of care by promoting physician adherence to clinical practice guidelines, and would also help to avoid frivolous lawsuits, lowering overall health care costs and ensuring that physicians can continue to treat their patients."

That bill, introduced in the last Congress, would provide safe harbor protection to doctors who are sued if they followed evidence-based clinical guidelines. If a doctor followed the approved guidelines, the case would be removed from civil court while a medical review panel investigated the claim. The bill also would allow for some cases to be transferred from state to federal court if they involved federal dollars such as Medicare. The Physician Insurers Association of America (PIAA), an association representing the medical professional liability insurance community, also praised the Senate for passing the bipartisan legislation.

"PIAA ... worked tirelessly to negotiate language to be included in the Sustainable Growth Rate replacement legislation that would protect healthcare professionals from the misuse of federal reimbursement and other guidelines," replied Gloria H. Everett, chair of the PIAA board of directors and president and CEO of The Mutual RRG, by email. "We are very pleased about the passage of this legislation, and we applaud members of both the House of Representatives and the Senate for recognizing the importance of this provision for access to care." "Quality measures ... will take on increasing importance in a high-value, low-cost healthcare system," American Academy of Family Physicians (AAF) President Robert Wergin, MD, said in an emailed statement. "They are meant to measure the quality of care and then improve on it. However, they should not determine the standard of care in a medical liability case.

We are pleased that Congress explicitly recognized this distinction in the legislation."

"This marks one of the rare occasions when both political parties recognized the essential value of a bill and collaborated in achieving its passage. It has been a very gratifying process," said PIAA President and CEO Brian K. Atchinson.

1. 114th Congress, First Session. To amend title XVIII of the Social Security Act to repeal the Medicare sustainable growth rate and strengthen Medicare access by improving physician payments and making other improvements, to reauthorize the Children's Health Insurance Program, and for other purposes.

http://energycommerce.house.gov/sites/republicans.energycommerce.house.gov/files/114/BILLS-114hr2ih.pdf Accessed April 15, 2015.