On March 26, the House passed the doc fix' bill that would permanently repeal the sustainable growth rate formula by a vote of 392 to 37. It is also expected to pass the Senate, which reconvenes on April 13, and President Obama has already said he is ready to sign the bill. Passage of the bill will help physicians avoid a 21% cut in Medicare reimbursement and give them a 0.5% pay increase for each of the next five years.
According to The New York Times, among other provisions, the bill will require quality of care to be measured on a scale of zero to 100. But it also says that quality of care standards used in federal health programs cannot be used in malpractice suits. The bill's malpractice provision reads, "The development, recognition, or implementation of any guideline or other standard under any Federal health care provision shall not be construed—(A) to establish the standard of care or duty of care owed by a health care provider to a patient in any medical malpractice or medical product liability action or claim."
What proponents are saying
Proponents of the provision say that federal standards do not accurately reflect the standard of care and should therefore not be used in malpractice suits. Harry Dasinger, vice president of the Doctor's Company, a physician-owned medical malpractice insurer, told The New York Times that the standard of care should be established by expert testimony, rather than by federal guidelines. "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," he said.
Rep. Michael Burgess (R-Texas), who sponsored the bill, said the bill will remove the threat of payment cuts and also move federal health programs toward a quality-based payment system. "While taking these important steps toward ensuring quality care, the bill specifically states that these quality measures are not creating a federal right of action or a legal standard of care," he said.
The American Medical Association (AMA) has been lobbying for passage of the bill, including the medical malpractice provision. AMA president Robert Wah said the federal quality measures "should not be exploited to invent new legal actions against physicians."
What critics are saying
Not everyone is in favor of the bill's medical malpractice provision. "Why wouldn't you want to take these guidelines into consideration?" Tom Baker, a professor and law insurance expert at the University of Pennsylvania asked. "They indicate what a reasonable doctor does and should do, just like guidelines adopted by a medical specialty society."
The National Consumer Voice for Long-Term Care expressed concerns that the provision would make it more difficult to show negligence in malpractice cases brought by nursing home residents.
Weighing both sides
Michael Frakes, an associate professor who teaches health law at Northwestern University told Modern Healthcare that the bill's language isn’t likely to change much about the way malpractice cases are currently handled. However, he believes it brings up a larger question of whether or not clinical guidelines should be used in medical malpractice cases, instead of relying on expert testimony on customary standards of care. Frakes said on the one hand, there is a lot of variation in how physicians practice. On the other hand, there are also thousands of guidelines, which brings up the question of which ones should be used.