Ga. en­acts doc shield law

ACA el­e­ment res­ur­rected as pro­tec­tion in law­suits

Modern Healthcare - - REGIONAL NEWS - Andis Robeznieks

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.

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