Medical malpractice claims could decrease under ACA
It is possible that the increased preventative care provided by the Affordable Care Act (ACA) could even reduce the number of patients seeking emergent or late-term medical care, thereby reducing medical malpractice claims, but that situation is far from certain, says James Ron Kennedy, MHA, ARM, AIC, vice president for risk management and patient safety at Louisiana Medical Mutual Insurance Co. (LAMMICO) in Metairie.
“The promise of global decrease in costs as a result of preventative care, in the medical malpractice arena, just like the healthcare arena, has yet to be empirically validated,” Kennedy says. “However, I am of the opinion that it will likely be an unfulfilled promise.”
The ACA is likely to change the nature of medical malpractice claims even if it does not affect the number of claims filed, Kennedy says. As healthcare moves toward the accountable care organization (ACO) model, the possibility of entity exposure becomes more likely, he says. Liability that previously might have fallen on an individual caregiver can be applied to the entities participating in the ACO because, by their nature, ACOs involve integrated care, he says.
In addition to the ACO model, the ACA requires nonprofit hospitals to perform annual community needs assessments, develop a written implementation plan to address community health needs, or declare why they are not addressing identified needs. “The assessment and implementation plan must be publically available — fertile ground for consumer activists and plaintiff attorneys,” Kennedy says. “This is a developing corporate liability exposure for the nonprofit hospitals. Add to this the potential of anti-trust allegations, all of which could be used by plaintiff attorneys to leverage a quick settlement even with an otherwise weak medical malpractice claim.”
Another possible positive effect for hospitals is fewer emergency department (ED) visits for uninsured patients, notes Robert Allen, senior vice president for medical professional liability with Torus, an insurer based in Jersey City, NJ. The many uninsured patients currently seeking care in the ED should be able to seek more appropriate care when they are insured, he says, which will take pressure off of overworked EDs. That situation, in turn, could improve ED care and result in fewer malpractice claims.
Additionally, those previously uninsured patients might seek help earlier than when their only option was the ED, which would result in less critical care, Allen says. That change also could result in fewer claims, he says. “I’m actually of the opinion that ED activity will actually go down,” Allen says. “You won’t see the child with the mild fever coming through the ED, so you’ll get some relief there.”
The ACA also could change the way damages are awarded in malpractice claims, says James A. Farrell, JD, a partner with the law firm of Shutts & Bowen in West Palm Beach, FL, and formerly general counsel for a hospital.
“Plaintiffs have used the future cost of care as a way to pump up the value of the case significantly, and if everybody has health insurance, why are there any medical damages?” Farrell asks. “At most the medical damages should be limited to the cost of the premium to continue their coverage.”
Sources
• Robert Allen, Senior Vice President, Medical Professional Liability, Torus, Jersey City, NJ. Telephone: (201) 743-7759. Email: [email protected].
• James A. Farrell, JD, Partner, Shutts & Bowen, West Palm Beach, FL. Telephone: (561) 650-8539. E-mail: [email protected].
It is possible that the increased preventative care provided by the Affordable Care Act (ACA) could even reduce the number of patients seeking emergent or late-term medical care, thereby reducing medical malpractice claims, but that situation is far from certain, says James Ron Kennedy, MHA, ARM, AIC, vice president for risk management and patient safety at Louisiana Medical Mutual Insurance Co. (LAMMICO) in Metairie.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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