Rare is the day that the U.S. Congress wanders into the thicket of state-based medical malpractice suits, but this spring saw one such example. In a recent Medicare bill, bipartisan majorities of each house approved a bill that would arguably impact future lawsuits against doctors and other health care providers.

Robert E. Cooper
Robert E. Cooper

H.R. 2, the Medicare Access and CHIP Reauthorization Act of 2015, was primarily aimed at overhauling the way physicians are paid for rendering services to Medicare patients. Since the late 1990s, doctors have been paid for rendering services to Medicare patients according to the Sustainable Growth Rate, a metric tied to the nation’s GDP. Legislative adjustment to the inevitably-disappointing payment schedule has proven tiring to Congress, which lead to a bill to eliminate the SGR altogether, and tie physician pay to performance, largely based on quality of care rendered.

To that end, H.R. 2 requires the government to measure performance and quality and rate those metrics on a scale of zero to 100. This is not the first time that the federal government has implemented such pay-for-performance standards. Medicare frequently measures whether smokers on Medicare receive smoking cessation counseling, on whether patients develop post-surgery infections, and the like. Measurements similar to these are likely to increase in the months ahead.

If doctor compensation is to be related to performance-based standards, however, it raises a concern. State laws governing litigation against health care providers deem a provider’s  performance negligent only if the provider departs from the “standard of care” for “similarly-situated” providers. It may be tempting to lawyers of both sides to try to prove the provider’s competence, or lack thereof, by tying the performance in a specific case to the government’s performance data.

Anticipating that approach, Congress included in H.R. 2 a “rule of construction” provision referred to as the “Standard of Care Protection Act,” which is now listed as Section 106(d) of H.R. 2 – providing that any federally-implemented health care performance rating “shall not be construed to establish the standard of care or duty of care owed” in either a medical malpractice or a product liability action. This legislative language states that federal health care metrics shall not be determinative in a court of law as to whether or not an act of medical negligence has occurred. The provision is drafted in such a way that it reaches not just federal lawsuits but also cases filed in state court and pursuant to state law.

Some of the impact of this bill is certain. The bill clearly means that using the zero to 100 ratings, or other federal data on doctor services, cannot “establish” the standard of care for purposes of a medical malpractice lawsuit. In essence, the bill simply continues the status quo.  What remains to be seen, however, is the degree to which government data might be used as one indicator among many, or some evidence showing the degree to which the provider’s care meets an independently-established standard of care.

H.R. 2 is a reassuring step for physicians and other health care providers. Even if it establishes no new proposition of law, it at least guards against liability being imposed upon doctors simply for their failure to meet some metric assigned without attention to the specifics of a particular patient. That said, this move, and others by the government to rein in spending and pay providers based upon outcome, will probably lead to efforts to test the relevance of government measurements of quality in litigation arising out of the delivery of medical services.

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