Collaborative members are reporting a lot of concern from physicians about the question, "What implication does medical home's team-based care approach have for my malpractice risk?" Our recent webconference on legal issues in the medical home didn't tackle that issue, so we asked one of our attorney panelists for that presentation, C. Frederick Geilfuss, II of Foley & Lardner LLP, to weigh in.
Background: Team-based Care in the Medical Home
"In a medical home, a team made up of a group of providers such as a primary care physician, one or more mid-level providers, a nurse, and perhaps others are assigned to a patient with the goal of bringing a personalized approach to understanding and making recommendations concerning the appropriate care for the patient. It is often used for a patient with a chronic disease. The team is charged with understanding and coordinating the patient's medical history and care plan and any team member may provide treatment recommendations. The team members may all be employees of one entity or the team may be made of individuals employed by different entities."
How does this medical home team approach affect potential malpractice liability?
"The team approach is not foreign to medical treatment. For example, an operating room team will include with respect to a particular surgery, the surgeon, a nurse, an anesthesiologist and perhaps others. The particular allegation that gives rise to a claim of malpractice with respect to a surgery will determine which person or entity involved may be sued and/or found liable.
In a medical home, given its nature, there may be less clarity as to which member of the medical team was responsible for the particular action or omission giving rise to the malpractice allegation. As such, a malpractice plaintiff may be more likely to sue all members of the team with the liability being sorted out as the case progresses.
Also, given the purpose of the medical home -- to provide a personalized understanding of a patient's medical history-- the medical home team may be more apt to be included in a lawsuit if there is a failure to communicate to a specialist an important detail of a patient's medical history. One might expect that issue is magnified by the fact that the legal standard of care for medical homes has not begun to develop.
If all the medical home team members are employed by the same entity, then presumably one malpractice policy will respond on behalf of all members. If the members of the medical team are employed by different entities, then it is likely that more than one malpractice liability policy will be involved. This increases the likelihood of finger-pointing concerning which team member was responsible.
In short, a medical home will present similar malpractice issues to those that are faced today, although different allegations and issues are apt to be emphasized."
Please remember that the Advisory Board doesn't give legal advice -- we encourage you to talk to your hospital counsel and solicit additional legal expertise wherever necessary.
Related: Malpractice risk and clinician performance reporting
For those of you who have access to the Clinical Advisory Board (CAB), we did some non-medical-home-related research last year into whether increased performance reporting at the individual clinician level (e.g., OPPE) has been shown to have any link to increased malpractice risk -and if so, what could be done about minimizing that risk.
Keeping in mind the same caveat as above, which is that we don't give legal advice, etc. ... The short answer here is that we did not find any such link. This is not to say there is no risk, just that we found no studies or anecdotal evidence that established any such pattern or connection between greater availability of data and lawsuits; and in contrast, there have been many studies about this topic that have uncovered specific factors that do seem to be connected to increased malpractice risk.
In fact, looking at the more common drivers (such as poor physician-patient communication), it seems to us that QI/PI programs can actually be an asset when it comes to minimizing liability, if they are structured to emphasize performance improvement in areas where better performance is linked to fewer lawsuits (or greater defensibility). This type of proactive approach might be a helpful direction for addressing clinician concerns.
The research is available on pp. 44-47, "Malpractice Risk Containment Strategy," in the study The Accountability Moment: 10 Principles for Moving Beyond OPPE to a Rigorous, Credible Physician PI Framework available for download in PDF format or hard copy.