The mid-term congressional election is less than two months away and some observers wonder whether the event will be all about nothing.
A panel of industry experts from The MGIS Companies and top malpractice defense law firms explored looming emerging risk realities under the Affordable Care Act (ACA) in a round table discussion at the Crittenden Medical Insurance Conference.
According to a release, entitled, If We Had a Crystal Ball: What are the Top Five MPL Claim Allegations to Expect Under the ACA, the capacity-crowd presentation generated considerable discussion and debate while examining a range of critical issues facing the industry. Areas highlighted included: The malpractice risks of an expanded care team; an increasing trend by plaintiff attorneys to assert guidelines as the standard of care; and the current trend toward lawsuits that focus on the deep pockets (e.g., health system or ACO) as opposed to actual responsible parties and entities.
The presentation was moderated by Kim C. Stanger of Holland and Hart, law firm of Boise and led by Margaret "Peggy" Holm, Shareholder with Bonne Bridges Mueller O'Keefe & Nichols of Orange County, Calif.; Elke Kirsten-Brauer, EVP/Chief Underwriting Officer, MGIS Underwriting Managers, Inc.; and Molly L. Farrell, Vice President of Operations, MGIS Underwriting Managers, Inc.
"The industry is very concerned that the ACA will potentially open up medical professionals to more claims based on vicarious liability," noted Farrell. "The need to manage more non-physician providers to handle a large influx of new patients - many with untested expectations of the healthcare system - will present new undefined risks - we have to get ready and ensure we have programs to address the new healthcare reality."
The presenters noted that key issues to watch include:
-The potential created by the ACA, as well as by plaintiff attorney interpretations of the law, to expand the number and nature of malpractice claims, specifically in the area of vicarious liability, or claims based not on what a physician providing care has done, but holding the physician and/or medical group responsible for the misconduct of others on a healthcare team.
-The use of Standards of Care criteria in lawsuits. Panelist Peggy Holm noted that some plaintiff attorneys have attempted to use the approved guidelines from specialty boards as "rules" for the standard of practice and patient safety, placing operational guidelines over proven clinical and outcomes-based research. The ACA minimum standards for reimbursement as well as other physician and group reporting requirements might offer attorneys new avenues to argue the "rules" and the standard of care have been defined.
-Miscommunication and/or poor patient hand-off. As the healthcare system becomes more complex, and as there is an emphasis on "team based" care and technology for efficiency and cost savings, there is also an increased risk of some critical piece of patient data "falling through the cracks" and leading to a medical error.
-The need to educate a new population of patients who may have had limited access to healthcare in the past and who may have unrealistic expectations and demands.
-Over-burdened systems and staff. By 2018, it is anticipated some 22 million new people will have attained health insurance. As the healthcare industry expands to care for these patients, there are concerns that some providers will become over-burdened, which could potentially lead to errors and oversights.
Other trends discussed by the panel have moved out of the "crystal ball" stage and are now showing up in the courtroom. "The plaintiffs' bar increasingly asserts that medical specialty board guidelines protect the public from the healthcare system," said Holm. "That opens the door to guidelines becoming rules dictating the standard of practice and patient safety rather than relying on the skill and experience of physicians deciding what's best for each individual patient under their care."
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