Lawmakers Look to Keep Affordable Care Act Guidelines, Reimbursement Requirements Out of Medical Liability Lawsuits

Note: The article below first appeared in the May 2013 issue of the Medical Liability Monitor, a monthly newsletter reporting on the medical professional liability insurance and risk management industries.

With the American healthcare delivery system bracing itself for a deluge of new patients who will gain access to medical treatment by the end of this year through provisions in the Patient Protection & Affordable Care Act, state medical societies, physician coalitions and the American Medical Association (AMA) have been lobbying lawmakers to exclude newly mandated medical guidelines and reimbursement requirements from admissibility in medical professional liability lawsuits. These groups and their allies argue that the reimbursement requirements intended to steer the healthcare system from a fee-for-service model to one rooted in outcome quality are a Pandora’s box for the plaintiff’s bar to exploit in litigation.

“Healthcare providers in our districts and across the country fear [that] federal healthcare legislation leaves them vulnerable to new forms of liability for simply providing personalized care to their patients,” wrote Reps. Phil Gingrey, MD, and Henry Cueller in a letter to their colleagues in the U.S. House of Representatives. “As you know, the Patient Protecton & Affordable Care Act created new required standards of care for medical providers. Should these standards not be met, medical providers are at risk of being sued regardless of the medical outcome.”

The solution crafted from model legislation provided by the American Medical Association and introduced by Gingrey and Cueller is the Standard of Care Protection Act of 2013. The Act would not amend or change the Affordable Care Act, but would create a rule of construction in federal statute clarifying that lawsuits could not be based simply on whether medical providers followed the national guidelines created in the new healthcare laws.

“This bill would protect physicians and other healthcare providers from new liability exposure resulting from national care and practice standards or guidelines derived from the Patient Protection & Affordable Care Act and federal programs,” wrote James L. Madara, MD, executive vice president and chief executive of the AMA, in a letter supporting the Standard of care Protection Act. “In addition, the bill preserves state medical liability laws. The ACA included multiple provisions concerning the establishment and implementation of national care and practice standards and guidelines for health care providers.  [The Standard of Care Protection Act] makes it clear that the care standards and guidelines detailed in the ACA as well as federal programs cannot be used to create new causes of legal action against physicians providing care to their patients, nor do they supersede state liability laws.  Physicians should not have to worry about potential new causes of action or liability exposure in an age of developing and implementing new ways to improve the quality and efficiencies of care.”

The same week that Gingrey and Cueller introduced their legislation, the Georgia General Assembly passed similar legislation. The Georgia Provider Shield Act says that any medical guideline or reimbursement criteria developed or implemented under any federal law cannot be construed as a standard of care to establish a physicians’ negligence in a medical malpractice or product liability suit. Gov. Nathan Deal is expected to sign the bill.

Similar bills are expected to be introduced in state houses across the country.