Practice Economics

Accountable care organizations may fuel new litigation theories



The aim of accountable care organizations is to improve health care quality, enhance care coordination, and reduce unnecessary costs. But the new health care delivery models are raising questions about possible hidden legal dangers for participating physicians.

"We’re talking about unchartered territory," said Christopher E. DiGiacinto, a medical liability defense attorney and partner in a New York law firm that focuses on the defense of professional liability claims including those brought against health care professionals and others. "There’s been a lot of uncertainty about how [ACOs] will affect the landscape of litigation. It could go any number of ways."

Dr. Julian D. "Bo" Bobbit, Jr.

Mr. DiGiacinto cowrote an article in the 2013 summer issue of Risk Management Quarterly, the journal of the Association for Healthcare Risk Management of New York, detailing malpractice risks doctors may face within ACOs (RMQ Summer 2013). The liability dangers stem primarily from federal guidelines that outline how ACOs should operate and how doctors can enhance their practices.

For example, the Affordance Care Act requires that ACOs share medical information across multiple health care environments to improve knowledge among providers and to eliminate duplication of treatment across the care continuum. But such enhanced record maintenance could expose physicians to increased liability, Mr. DiGiacinto said. A plaintiff’s attorney could claim a doctor’s failure to access a patient’s prior medical records led to a subsequent poor medical outcome.

"There’s going to be a lot more data in this model, which is great for patients and allowing physicians to track patients," he said. "The downside for physicians is, where in the past, they might only be responsible for their own record and knowledge of the patient from their own perspective, now, they’re being responsible for knowing the [patient’s] history from other doctors. There’s going to be a wealth of information that could be used against them."

ACOs also create the potential for a heightened duty of informed consent for physicians, said Julian D. "Bo" Bobbitt Jr., senior partner and head of a health law group at a law firm in Raleigh, N.C. Federal guidelines call for ACOs to promote patient engagement during individualized treatment by involving patients and their families in making medical decisions.

"Under Medicare ACO regulations, there has to be a patient care plan and there has to be significant commitment to patient and family engagement and joint decision making," Mr. Bobbitt said. "What happens if you did a care plan, but you didn’t follow it? You were supposed to engage the family, but you didn’t?"

In such an instance, it’s possible a family member could sue, claiming he or she was not involved enough in the medical decision–making process, said Mr. Bobbitt.

Physicians who help create ACOs or hold administrative positions within the organizations may also be more at risk for being sued, say liability experts, whether or not they were directly involved in patient care.

In the past, entities such as HMOs were rarely sued for the actions of participants because such corporate structures are not generally responsible for the rendering of care, Mr. DiGiacinto said. However, federal guidelines recommend that medical professionals be involved in the corporate structure of ACOs, and that the organizations be accountable for the care they provide. This framework could fuel vicarious liability or corporate negligence claims in which the ACO itself is said to be liable for care provided to patients, according to the Accountable Care Legal Guide and RMQ article. In addition, physician leaders could potentially be sued for alleged negligent credentialing of other health professionals in the ACO, said legal experts.

But some, such as Christi J. Braun, believe suggested ACO litigation dangers are being overblown. Clinically integrated networks are designed to improve quality across all care providers, said Ms. Braun, a Washington-based health care antitrust attorney and cochair of the American Health Lawyers Association’s Accountable Care Organization Task Force.

"Even if you may not be following the protocols all the time, just the fact that you’re looking at best practices and trying to apply best practices makes it more likely that you’re going to provide better care on a more consistent basis," she said. "That actually reduces liability."

At the same time, physicians should not be so focused on following federal guidelines that they allow metrics and benchmarks to override quality medical judgment, said Brandy A. Boone, an Alabama-based senior risk management consultant for a national medical liability insurer.

"I think the biggest risk associated with ACOs or any other arrangement where physicians are incentivized to keep costs down by the prospect of making more money is the allegation that necessary tests or treatments were not offered or recommended because of the effect on reimbursement," Ms. Boone said. "We always caution our insured physicians that treatment recommendations should never be based on the patient’s ability to pay. While the majority of physicians would never actually let reimbursement sway their clinical decisions, avoiding that perception is also very important."


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