March 22, 2017 by matray

If one wanted to divine how the GOP intends to address medical professional liability in its yet-to-be-determined replacement for the Affordable Care Act, one place to look would be the legislation introduced by U.S. Rep. Phil Roe in January. “When I came to D.C., the Republican Study Committee asked me to write a Republican alternative to the Affordable Care Act,” Roe said. “I formed a solid group on my committee, and when putting this together, I thought it wouldn’t be complete without a malpractice piece because the cost of unnecessary defensive medicine practiced in this country is enormous. If you go to an emergency room today and say your belly hurts, you’re going to get a CT scan, an ultrasound and — most likely — a multi-thousand-dollar bill. Did the quality of care go up that much more? My answer to that is, ‘No, it did not.’” Crafted by Roe — a board-certified obstetrician/gynecologist — in conjunction with members of the conservative House Republican Study Committee, the American Health Care Reform Act of 2017 addresses medical professional liability and its correlating practice of defensive medicine by creating a mechanism to remove certain medical liability claims from state court to district court, where defendant physicians would be able to take advantage of a safe harbor from lawsuits when practicing within predetermined clinical practice guidelines. Safe Harbors and the Standard of Care At the heart of any medical liability lawsuit is the standard of care and whether that standard was deviated from. The safe harbor concept is designed to protect physicians from malpractice liability if they provide care that follows predetermined, uniform clinical practice standards. Under the American Health Care Reform Act of 2017, the Secretary of Health & Human Services would enlist professional organizations to create and maintain “clinical practice guidelines, including when applicable, appropriate use criteria, that incorporate best practices.” If an adverse event does occur, and a medical liability claim is asserted, safe harbors operate by establishing a presumption of non-negligence if the named physician adhered to the applicable, approved standards. Health policy experts who support the safe harbor concept argue that it injects predictability and reliability into medical liability litigation, while promoting evidence-based, standardized care and decreasing the utilization of unnecessary tests. The American Health Care Reform Act of 2017 would create a legal “safe harbor” from liability for physicians who follow evidence-based, best practice guidelines by providing: (1) a voluntary right of removal to federal court so long as there is a federal payer (e.g., Medicare, Medicaid) or a federal statute is involved, (2) a mandatory independent medical review panel pre-discovery and (3) an increased burden of proof for plaintiffs to overcome summary judgment from the standard of “preponderance of the evidence” to that of “clear and convincing” after a finding of non-negligence by the review panel. “The reason we need [safe harbor legislation] is because defensive medicine is producing overutilization, driving up costs,” said Rep. Garland “Andy” Barr IV, who was a practicing liability lawyer prior to his election to Congress and is a co-sponsor of the American Health Care Reform Act of 2017. “The litigation lottery environment that I was exposed to in private practice, both on the plaintiff side and representing hospitals and physicians, was evidence enough to know that there’s a lot of wasteful expenditures in the administration of healthcare services that are unnecessary and not medically indicated, simply for purposes of protecting doctors, hospitals and nurses from frivolous lawsuits. “We think that the best way to go about this is to provide a safe harbor for those healthcare providers who adhere to clinical practice and diagnostic guidelines. These are peer-reviewed, evidence-based guidelines. The argument to the plaintiffs’ bar, patient advocates and people who are concerned about actual medical errors, is that this would actually raise and standardize the standard of care nationwide.” While Barr appears to view a nationwide standard of care as a positive, many thought leaders in the medical professional liability realm are against safe harbor legislation for exactly that reason. Traditionally, the standard of care has been defined as the average degree of skill, care and diligence exercised by members of the same profession, practicing in the same or similar locality in light of the present state of medical and surgical science. To move the standard of care from local to nationwide would likely open certain physicians to increased liability claims. For example, physicians in small rural communities do not have the same opportunities as their urban counterparts to learn of the latest medical advances and use the latest medical innovations. An urban medical professional could then provide expert medical testimony that the defendant rural physician should have employed technology and testing not readily available in the defendant physician’s local community. And a savvy plaintiff attorney could argue that any deviation from the clinical practice guidelines is a breach of the standard of care, thus an act of medical negligence. Why No Noneconomic Damage Caps? And Why District Court?  The medical malpractice insurance industry has consistently stated that the most effective means for reducing the cost of medical liability is to impose noneconomic damage caps on jury verdicts. The initial version of Rep. Roe’s legislation, the American Health Care Reform Act of 2013, did include a $250,000 cap on noneconomic damages, but both Roe and Barr admitted that there is no chance such caps would be able pass the House and Senate. “They’re a bridge too far,” Roe said of noneconomic damage caps. “You will never get caps passed. It’s just not possible. If we had put caps in this legislation, it would be dead. We’ve tried it in the past, and it goes nowhere.” Roe is referring to the political reality that Republicans face in repealing and replacing the Affordable Care Act. Democrats in the Senate are likely to filibuster any wholesale attempt at repealing the landmark legislation that brought 22 million Americans healthcare coverage for the first time, leaving Republicans the parliamentary procedure known as reconciliation to repeal and replace the specific parts of the law that deal with matters that relate to budgetary spending. Because medical professional liability reform does not fall under that banner, any changes to the medical tort system will require 60 votes to reach President Donald Trump’s desk for his signature. This will require concessions to both Democrats and the more conservative members of the Republican Party. “There are certain things we can and cannot do in the repeal-and-replace agenda via reconciliation; [medical malpractice] reforms need to move through regular order,” Barr said. “In order for us to have a chance to bring eight Democrats along, we have to be sensitive to some of the objections or concerns that have been raised in the past, and there is pretty uniform opposition to caps on noneconomic damages among Democrats.” The authors of the American Health Care Reform Act of 2017 also had to keep in mind the objections of conservative Republicans who stopped their own party’s Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act from getting out of committee last year on grounds that it violated the Tenth Amendment and the principle of federalism because the federal government has no authority to overwrite state civil liability laws. “We address the federalism concern by recognizing the tort law and medical malpractice litigation is traditionally within the jurisdiction of state courts,” Barr said. “But there is a strong federal interest in preventing overutilization of healthcare, lowering costs for the taxpayers and preventing defensive medicine. Therefore, for any malpractice claim that arises under a federal payer or a federal statute, the defendant should have an elective right of removal to federal court and avail themselves of this safe harbor provision. That’s how we get around the federalism issue. It’s an effort to have an innovative form of medical malpractice reform that can attract bipartisan support in the Senate, and we think it would also have the effect of limiting defensive medicine, even though there are no caps on damages.” This article appeared in the March 2017 issue of Medical Liability Monitor