A little-noticed provision in legislation to repeal the Medicare Sustainable Growth Rate formula would protect doctors from lawsuits based on their performance on federal quality measures.

Language contained in H.R. 2, the Medicare Access and CHIP Reauthorization Act specifies that the development, recognition, or implementation of any federal health care guideline or standard shall not be construed to establish a duty of care in medical malpractice claims.

The provision helps distinguish government quality guidelines and payment rules from medical liability standards, according to Brian K. Atchinson, president and CEO of PIAA, a national trade association for medical malpractice liability insurers.

“None of these rules or guidelines were created with the intent to establish a legal standard for negligence, and so it makes sense for Congress to clarify that fact,” Mr. Atchinson said in an interview. “The standard of care provision in the SGR fix bill does just that, and nothing more. It does not shift the playing field to either plaintiffs or defendants. Instead, it ensures that these federal rules are not misused for purposes for which they were never intended.”

The language was originally included in the Affordable Care Act, but was removed by the Senate. If the SGR repeal legislation is enacted, the provision would prohibit plaintiffs from using a doctor’s performance in a quality improvement program as the sole basis for a medical liability lawsuit or to prove negligence. For example, a physician who missed earning an incentive under the Physician Quality Reporting System could not have that fact raised in a malpractice action to build the plaintiff’s case.

Federal guidelines and quality criteria intended to measure the impact of health care delivery and payment systems should not be exploited to invent new legal actions against physicians, said Dr. Robert M. Wah , president of the American Medical Association.

“These guidelines cannot be inflated into claims of physician negligence,” Dr. Wah said in a statement. “Nor can it be assumed that failure to report under these programs is an indication of substandard care. It is clear that explicit protections are needed to hold the line against a medical liability system that invites abuse. The potential for new liability exposure is not the way to encourage physician engagement in the development and implementation of new strategies to improve the quality and efficiency of care.”

Officials at the American Congress of Obstetricians and Gynecologists said the bill’s provision is one step toward better legal protection for physicians who participate in federal quality programs. However, they stressed the need for further protection, such safeguards incorporated in H.R. 4106, the Saving Lives, Saving Costs Act introduced in the last Congress by Rep. Andy Barr (R-Ky.) and Rep. Ami Bera, (D-Calif.). The bill would provide safe harbor protection to doctors who are sued if they followed evidence-based clinical guidelines.

“ACOG is pleased that a provision in the SGR package was included to address standard of care protection and continues to support prompt passage of SGR repeal legislation,” according to a statement from the organization. “However, while we support the provision in the SGR package, our work will not stop once that legislation passes. We will continue to seek comprehensive and alternative medical liability reforms, and we hope that Reps. Barr and Bera reintroduce their safe harbor bill soon. [The legislation] would improve quality of care by promoting physician adherence to clinical practice guidelines and would also help to avoid frivolous lawsuits, lowering overall health care costs, and ensuring that physicians can continue to treat their patients.”

Under the safe harbor legislation, clinical guidelines developed by professional medical organizations would be used to determine whether a plaintiff’s lawsuit could continue against a physician defendant. If a doctor adhered to the approved guidelines during the time of the alleged malpractice event, the case would be removed from court proceedings, while a medical review panel investigated the claim. The bill also would allow for relevant cases to be moved from state to federal court if they involved federal dollars such as Medicare.

The bill has yet to be introduced in the current Congress.

The Medicare Access and CHIP Reauthorization Act meanwhile, awaits action by the Senate, which returns from a recess on April 13. The House on March 26 overwhelming passed the bill, which would repeal the SGR, reauthorize the Children’s Health Insurance Program for 2 years, and reform Medicare.

Medicare physician pay was cut by approximately 21% effective April 1, because of the expiration of the last temporary SGR fix. However, the Centers for Medicare & Medicaid Services announced that it would hold Medicare payments for 2 weeks, allowing Congress to complete action on the issue.

Without a legislative fix, CMS will begin processing claims with a 21% reduction in the physician’s rate beginning April 15. Should the SGR repeal legislation be signed into law, CMS will reprocess any claims processed at the lower rate.

agallegos@frontlinemedcom.com

On Twitter @legal_med

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