Hidden in the SGR deal: Malpractice suits can't use federal quality metrics

Provision would prohibit use of metrics for federal health programs in lawsuits

The House-passed bill to permanently replace Medicare's sustainable growth rate formula includes a "little-noticed" provision that would prevent quality metrics used in federal health programs from being used against providers in medical malpractice lawsuits, Robert Pear reports for the New York Times.

Background on the bill

The House on Thursday voted 392-37 to approve the bill. Among other provisions, the legislation would require the federal government to measure the quality of care provided by physicians on a zero to 100 scale, according to the New York Times. The bill also includes several other measures related to health spending, such as funding for community health centers, which serve low-income individuals in every state.

Overall, the measure would cost $213 billion. The deal would offset about $70 billion of the projected costs. In addition, it would add about $140 billion to the federal deficit over 10 years, according to estimates.

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The Senate is not scheduled to consider the measure until it returns from recess on April 13. Senate Majority Leader Mitch McConnell (R-Ky.) said the delay would not affect providers because of the normal lag time in claims processing.

President Obama last week said he is ready to sign bipartisan legislation to permanently replace the SGR formula.

Arguments for malpractice measure

Bill sponsor Rep. Michael Burgess (R-Texas) said that although the bill would result in "important steps toward ensuring quality care," it also "specifically states that these quality measures are not creating a federal right of action or a legal standard of care."

The malpractice protection language is "nearly identical" to language that has been recommended by insurers and physicians. They argue that federal quality-of-care standards—some of which are required by the Affordable Care Act and which increasingly are mandated by Medicare and Medicaid—do not adequately reflect quality of care and should not be allowed to prove negligence by a hospital or physician. 

Physician Insurers Association of America President Brian Atchinson said that the language in the measure would help to "eliminate the uncertainty" about whether federal quality standards can be used to find providers liable for medical malpractice. He said the provision would "simply preserve the status quo with respect to medical professional liability."

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Harry Dasinger—vice president of Doctors Company, the largest physician-owned medical malpractice insurer—said that whether a provider met a certain standard of care should be based on expert testimony and not federal guidelines. He said, "What a doctor thinks is best for a particular patient is not necessarily what the government thinks is right for groups of patients with that condition."

American Medical Association President Robert Wah, whose group has lobbied for the passage of the SGR replacement measure, said that federal quality metrics and federal guidelines "should not be exploited to invent new legal actions against physicians."

Arguments against malpractice measure

Tom Baker, an insurance law expert and professor at the University of Pennsylvania, said that the measure prohibiting malpractice claims based on federal quality metrics "does not make any sense." He added, "Why wouldn't you want to take these guidelines into consideration? They indicate what a reasonable doctor does and should do, just like guidelines adopted by a medical specialty society."

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In addition, the National Consumer Voice for Quality Long-Term Care said that the provision could result in nursing home residents having more difficulties establishing that the facilities had been negligent. Florida attorney James Wilkes said that such individuals should be able to use information that nursing homes had been in violation of federal health and safety standards in lawsuits against the facilities (Pear, New York Times, 3/30).

The takeaway: The House has passed legislation that would require the federal government to measure the quality of care provided by physicians on a zero to 100 scale. However, the scores could not be used in medical malpractice suit.

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