In March of 2010, President Barack Obama passed The Affordable Care Act
(ACA). This federal statute represents the largest overhaul within the
U.S. healthcare system since the development of Medicare and Medicaid
programs in the 1960s. The ACA faced legal challenges after its passage.
However, in June of 2012, the U.S. Supreme Court upheld the constitutionality
of most of the ACA’s provisions.
ACA will implement performance measures to create incentives for improving
One of the goals of ACA is to institute reforms that will improve
healthcare outcomes as well as, streamline the delivery of healthcare. To this end,
ACA includes provisions that change how Medicare reimbursements are handled.
Currently, Medicare operates a fee for service reimbursement model. This
means that when a procedure, such as a hip replacement, is performed Medicare
provides individual payments to each service provider involved in completing
the procedure. However, under ACA, Medicare will shift to a pay for performance
model whereby a single payment is issued to the hospital or physician
group. The pay for performance model will also provide hospitals, physicians,
and other healthcare providers with financial incentives for improving outcomes.
Medical professionals are concerned that performance measures will be used
prove legal liability in medical malpractice cases.
The use of performance measures as part of ACA’s pay for performance
model has many individuals wondering whether capturing such data will
open up healthcare practitioners to legal liability. For instance, can
poor scores on an ACA performance measure relating to a physician’s
care of a patient provide grounds for the patient to sue the doctor for
malpractice? Or, can an attorney introduce poor performance scores as
evidence of medical negligence?
Georgia is the first state to pass a bill preventing ACA driven performance
scores from being used as a basis for legal liability.
The American Medical Association (AMA) is trying to prevent performance
data from opening up healthcare providers to legal liability. As such,
AMA has developed model legislation to this effect for lawmakers across
the country. Georgia is the first state to respond to AMA’s efforts.
Last month, the State’s legislator passed a bill that would prohibit
any medical guideline or reimbursement criteria that is developed under
federal law from being used to established the standard of care in a negligence
case for medical malpractice. The bill also bans using compliance with
such guidelines or criteria as favorable evidence for a physician facing
a negligence claim. The bill is currently awaiting signature by Governor
AMA also supports the Standard of Care Protection Act, a bipartisan bill
that was recently introduced at the federal level by Rep. Phil Gingrey,
MD (R-GA) and Rep. Henry Cuellar (D-TX). This legislation would prevent
individual who bring a medical malpractice case from using guidelines
established by ACA, or Medicare and Medicaid statutes to establish the
standard of care that their physician had a duty to maintain. In addition,
the legislation would not allow any federal laws to trump state laws related
to medical liability.
Contact an attorney immediately if you have been injured during the course
of your medical care as a result of negligence on the part of your physician
or other healthcare professional. An attorney can help protect your legal
rights and ensure that you receive the compensation you deserve.