Medicare Pay Fix Has an Add-On: Malpractice Protection for Doctors

Last month much attention was paid to the passage of a bill by the House of Representatives to reconfigure how doctors are paid by Medicare. But one of its provisions escaped most people’s attention, and it has a huge potential effect on patient safety. It grants added protection for doctors against medical malpractice lawsuits.

As reported last week by the New York Times, “The bill, which requires the government to measure the quality of care that doctors provide and rate their performance on a scale of zero to 100, protects doctors by stipulating that the quality-of-care standards used in federal health programs – Medicare, Medicaid and the Affordable Care Act – cannot be used in malpractice cases.”

Everyone’s familiar with the comparison of law-making to sausage-making, and that description is apt here, too, as the language in the bill essentially replicates the language doctors and insurance companies wanted to see; that is, special-interest lobbies influenced public policy more than civil justice.

The medical industry claimed that because federal standards and guidelines do not fairly reflect standards of care, they shouldn’t be used as evidence of negligence when something goes wrong in the care of a patient.

But there has to be some kind of standard by which performance is measured, especially when taxpayers are footing the medical bill. Why should doctors and hospitals not receive the same kind of work scrutiny everyone else is subject to?

Insurance companies and federal programs such as Medicare increasingly require providers to report data that are used to review the quality of care. Reimbursement is based on performance as compared with similar providers.

As The Times explained, “Medicare, for example, asks doctors: What percentage of tobacco users receive counseling on how to stop smoking? What percentage of patients develop infections after surgery? What percentage of diabetes patients have blood sugar levels in the normal range?”

And that sort of oversight is only expected to increase as more people are covered by government insurance plans and as medical costs increase.

Providers worry about the increasing reliance on cold numbers, and there are limits to how well numbers represent someone’s skill and the ability to treat patients as individuals, not sets of symptoms.

Brian K. Atchinson is president of the Physician Insurers Association of America, a trade group for insurers. He told The Times that the bill would “eliminate the uncertainty” about how to use federal guidelines and standards in determining legal liability of providers. Rather than an extra layer of protection, he said the bill would, “simply preserve the status quo with respect to medical professional liability.”

But to other industry observers that seems more like a reason to excuse medical providers from paying the attention all patients have the right to expect. “Why wouldn’t you want to take these guidelines into consideration?” asked Tom Baker, an expert on insurance law at the University of Pennsylvania. “They indicate what a reasonable doctor does and should do, just like guidelines adopted by a medical specialty society.”

Other consumer advocates also see the bill’s provision as more ominous than reasonable.

The National Consumer Voice for Quality Long-Term Care told the newspaper that the protection provision would make it more difficult for nursing home residents who are injured to defend their rights, that it would interfere with their ability to prove negligence by showing that a facility had violated federal health and safety standards.

Provider lobbyists want such testimony to come from “experts,” not guidelines. They want doctors to be able to say that other doctors must be able to make decisions they believe are best for a given patient instead of being forced to make a decision based on what the government believes is best for all people with that condition.

That misses the point. No one argues that doctors must have flexibility in treating people; what they’re not allowed to have is a negligent practice. If they make a mistake, the reasons for it should be open to scrutiny by whatever measure can explain it.

The primary goal of the House Medicare bill, which the Senate did not consider before Congress left on Easter break, is to revise the way doctors are paid; it isn’t to address what happens if they’re negligent.

The bill would head off a scheduled 21% cut in what Medicare pays doctors; the Senate is supposed to consider the bill when legislators return April 13.

One of the bill’s sponsors, according to The Times, said the new payment formula would help doctors “get out from under the constant threat of payment cuts” while endorsing a new payment system based on “quality measures.”

“While taking these important steps toward ensuring quality care,” he said, “the bill specifically states that these quality measures are not creating a federal right of action or a legal standard of care.”

President Obama and many representatives, Democrats and Republicans, have endorsed the bill, but how many of them read, or understand, what it means not just for paying doctors, but protecting patients?

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