Physicians who are
Medicare and Medicaid providers would be granted increased liability protection
if they can demonstrate that they followed established clinical guidelines,
according to a bill introduced in Congress this week. The Saving Lives, Saving
Costs Act, introduced by Reps. Andy Barr (R-KY) and Ami Bera (D-CA), would
create a "safe harbor" for physicians who follow best practice
guidelines. Physicians also could request that state-level malpractice suits be
moved to federal courts.
The concern is that the Safe Harbor is established by
following a Comparative Clinical Effectiveness standard established by the
Government. The article states:
"Rather than
being directed by Washington, the guidelines will be developed by the physician
community based on the best available scientific evidence," according to a
joint statement by the legislators. "Guidelines should be developed
through a transparent process by a knowledgeable, multidisciplinary panel of
experts." A physician who is being sued could "argue that he or she
adhered to the relevant practice guidelines, which would cause a suspension in
the proceedings while an independent medical review panel investigates." If
the panel determines that the physician conformed to the guidelines, or that
failure to conform was neither the cause nor the proximate cause of the alleged
injury, the case would be dismissed pending clear and convincing evidence that
the medical review panel was in error, the statement said.
Now this has certain concerns. Specifically those relating
to CCE Standards. The problem with them are:
1. They are not patient specific. They are patient general
and the fact of the matter is patients are all different. Thus by following the
“Standard” it may actually cause harm to the patient.
2. The development of a consensus for Standards is a timely
process. It also is one that all too often reaches a least common denominator.
It also, if one see the results of the ACA, may be driven by both
non-physicians and worse, physicians having no expertise in the area of the “Standard”.
One need look no further than the USPTF and the Prostate Cancer debate as well
as the proposed standards emanating from PCORI, where “patients” get to opine
on what is correct.
3. Standards when delivered often are reached after
extensive developments may have occurred in the treatment and studies. Thus
Standards reflect a substantial time lag in the process. The adherence to “old”
practices again may result in poorer levels of care.
4. Standards are also now used to manage the physician. The
physician, if in fear of a law suit, will be forced to adhere to the Standard
and thus not use their own judgment and patient specific information.
5. Standards can be used to penalize the physician as well
as set limits on care. It can in a way be a back door way of rationing health
care. Standards developed by Government bodies of political appointees are
clearly a mechanism under the current Administration to delimit care and reduce
costs.
Thus this Bill, with possibly some good intentions, will
reduce the level of health care. One must remember that the road to Hell is
lined with such “good intentions”.
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