March 26th, 2012
Meet the New Boss, Same as the Old Boss — The Affordable Care Act and Medical Liability
Several Cardiology Fellows who are attending ACC.12 this week are blogging together on CardioExchange. The Fellows include Tariq Ahmad, Bill Cornwell, Megan Coylewright, Jeremiah Depta, and John Ryan (moderator). Read the previous post here. Read the next one here.
Since its passage in 2010, the Affordable Care Act (aka Obamacare) has been a lightning rod for controversy. This week, the battle reaches the Supreme Court, as the Justices begin hearing arguments on the constitutionality of the individual mandate. For a great discussion of this topic, go here. The Court has taken the highly unusual step of allowing oral arguments to progress for several days, due to the complexity and significance of the issues. This case may be a historic one, and the audio recordings of the oral arguments can be heard here.
Although the legal status of the Act remains uncertain, whether it survives or falls will have little impact on one aspect of physician life: medical liability. The Act’s minimal impact on the current malpractice landscape was a key element of a fascinating presentation today, U.S. Health Reform: What’s Missing? We were fortunate to hear from Dr. Richard Anderson, chairman of The Doctors Company, the largest physician-owned liability insurance provider in the nation. The ACC has recently endorsed The Doctors Company, and Dr. Anderson was here to provide his unique insights into a problem that all cardiologists encounter in one way or another.
Congress never misses an opportunity to miss an opportunity, and the Affordable Care Act is no exception, at least with regards to malpractice reform. In fact, as pointed out in today’s presentation, the Act actually makes certain changes more difficult. Section 10607, which authorizes demonstration projects to explore changes to the current liability system, prohibits changes which cap non-economic damages or limit lawyers’ fees. However, despite these limitations, these demonstration projects are moving forward; for a great summary, see this essay.
So for the time being at least, change will not be happening at the federal level. Furthermore, as discussed in today’s presentation, the changing nature of medical practice will likely increase liability exposure. With the passage of the Act, millions more patients will enter the medical system. If lawsuit rates remain unchanged, a raft of lawsuits will come with them. Second, the increased turnovers and increased number of physician extenders needed in medical practice today may result in increased errors, and more litigation. Finally, the emphasis on cost control, if not tied to liability protection, may trap providers between an irresistible force and an immovable object. As tests and procedures that don’t make economic sense are gradually pushed aside, failure to order these tests should not expose physicians to liability. Without these protections, efforts at cost control will likely never reach their goal.