EXECUTIVE SUMMARY
The amount of healthcare-related data available to the public is increasing at a rapid pace. Some analysts are concerned that the newly available data could lead to more litigation for healthcare providers.
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The Affordable Care Act is resulting in more data being available to the public.
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A similar increase in litigation occurred after state survey scores were released.
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Conditions of participation are a particular area of concern.
When legal changes led to a flood of healthcare-related information being released to the public in the 1990s, a wave of lawsuits against long-term care providers followed. With more data than ever available to the public now, risk managers should brace for the possibility of another increase in litigation that could hit a broader segment of the industry.
The lawsuit surge in the 1990s caused professional liability claim costs to soar from $200 per bed to more than $10,000 per bed in some instances, says Jeffrey Smith, senior vice president and healthcare leader with Lockton, a risk management consulting firm based in Atlanta.
Plaintiffs became skilled at using state survey scores against skilled nursing facilities when making claims of malpractice or neglect, which resulted in verdicts of more than $100 million in some cases, Smith says. Healthcare providers responded by improving organizational structure, pushing for tort reform, increasing use of alternative dispute resolution, increasing investment in quality initiatives, and reducing insurance limits. Those strategies calmed the waters for a while, but now the Affordable Care Act (ACA) is providing plaintiffs with more publicly available data.
“It was publicly available quality data that drove a lot of this litigation in the ’90s. This information can and will be used by attorneys and other professionals who selectively pick certain damaging details to use against providers,” Smith says. “Jury verdict sizes in medical malpractice claims against hospitals could meet the same fate as those against nursing homes.”
ACA dramatically increased the amount of regulatory oversight regarding nursing homes and makes regulatory supervision and inspection reports more widely available to the public, Smith explains. As required by the law, the Centers for Medicare and Medicaid Services began adding a vast amount of information to the Nursing Home Compare website, including the outcome of substantiated complaints and links to Internet sites citing deficiencies and plans of correction. More information about hospitals’ care of patients is now available to the public through the Hospital and Physician Compare website (http://tinyurl.com/ltulslo) and will continue to increase in the coming years.
Smith says these are the types of publicly available data that should be of most concern to healthcare risk managers:
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risk-adjusted quality based reimbursements;
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hospital readmissions;
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hospital-acquired conditions;
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patient surveys;
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care transitions.
Some of the information, such as patient surveys, doesn’t have a direct role in plaintiff litigation, but Smith says that situation is only because the attorneys haven’t figured out a way to use them. It takes only one judge to admit the information as evidence to open the door for other lawsuit, he says. “It’s not a question of if, it’s a question of when,” Smith says. “In the coming years we will find out how this data can be used creatively by plaintiffs’ attorneys.”
In addition, Smith says, plaintiffs are attempting to bring in conditions of participation (CoPs) applicable to hospitals in negligence per se claims, as evidence of the standard of care. Courts have been inconsistent in deciding whether to allow CoPs as evidence, but Smith says he fears the trend is to admit them as the standard of care. That trend means health system risk managers must bolster their basic knowledge of CoPs and understand the extent of their expertise to manage those risks.
“Areas such as data monitoring, strategic ties to public data, hiring considerations, and survey readiness preparations are some of the starting points for risk managers to assess,” Smith says. “This can help create a baseline in preparation for the potential landslide of lawsuits that appear to be on the horizon.”
The availability of data is closely tied to the use of social media, which poses additional risks, notes Angela Matney, JD, an attorney with the law firm of Hirschler Fleischer in Richmond, VA. The patient who uses social media and has a question about the available data, for example, could put healthcare professionals in a difficult position. “Healthcare providers want to take advantage of social media to promote patient satisfaction and facilitate communication, but at the same time, they have to take precautions,” Matney says. “Contact through social media shouldn’t happen until you have written consent from the patient, and then you should also document any interaction you have with the patient through social media.”
Matney also urges healthcare organizations to educate employees about the dangers of posting information on social media sites.
“They need to be educated and reminded often about how easy it is to post protected health information and violate someone’s privacy,” she says. “A lot of times people think that they have deleted names and other information, so that makes it safe, or they think it’s not going to be seen because they marked it private. Those misconceptions can lead to serious problems for both the employee and the healthcare organization.” (For more on social media, see “Sexting in surgery, Facebook post among latest problems,” Healthcare Risk Management, August 2014.)
• Angela Matney, JD, Hirschler Fleischer, Richmond, VA. Email: [email protected]
