The Doctor’s Advocate | First Quarter 2014
Since the introduction of the Patient Protection and Affordable Care Act (PPACA) in 2009, The Doctors Company has been working to get language added to the act that would prevent federal payment guidelines from being used as evidence of negligence. We were able to have an amendment added to the House version of federal health insurance reform, only to see it dropped from the Senate version that eventually became law.
Since the passage of the PPACA, we have promoted separate legislation that would add our language to federal statutes. In the prior Congress, we worked with Representative Phil Gingrey, MD (R-Georgia), whose bill, HR 816, declared that the development, recognition, or implementation of any guideline or other standard under the PPACA provisions related to healthcare quality “shall not be construed 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 case.” That bill ultimately did not make it out of the House.
In 2013, at the urging of The Doctors Company and our coalition partners, Representative Gingrey and Representative Henry Cuellar (D-Texas) introduced a new bill, HR 1473, that both simplifies and broadens the protections of the prior bill. The new bill, called the Standard of Care Protection Act of 2013, declares that guidelines or standards under any provision of PPACA, Medicare, Medicaid, or the Social Security Act shall not be construed to establish the standard of care or duty of care owed by a healthcare provider to a patient in any medical malpractice case. The bill also declares that no provision of PPACA or amendments made by it shall be construed to preempt any state law governing medical professional liability cases.
This version was made part of a larger federal bill to reform the Medicare Sustainable Growth Rate (SGR) formula and passed out of the House Energy and Commerce Committee by unanimous vote. The language has also been added to the House Ways and Means version of the SGR reform bill.
Further action on the SGR and the Standard of Care Protection Act has been delayed by the serial federal budget standoffs, but we expect the Senate and House to make progress on these issues in 2014. Meanwhile, the American Medical Association has developed a model bill for state legislatures based on the Standard of Care Protection Act.
The Doctors Company was able to help get the first state version passed in Georgia in 2013.
Consumer Watchdog and the California trial lawyers association are currently circulating petitions to qualify their anti-MICRA initiative for the November 2014 ballot. In order to get the issue before the voters, they will have to gather 504,760 valid signatures by March 24, 2014. Once they turn in their petitions, the counties will have some time to determine how many of the signatures are valid. The deadlines vary, but we do not expect to know whether the measure has qualified until the end of April at the earliest.
The trial lawyers continue to push hard for the legislature to raise or repeal the MICRA cap on noneconomic damages. If they can get a bill passed early in the legislative session, they can abandon the ballot measure campaign and save the millions of dollars they would have to spend in order to have any chance of winning voter approval. They have been pressuring the governor and legislative leaders to broker a deal to weaken MICRA.
The Doctors Company, our coalition partners, and pro-MICRA groups continue to support legislators who support MICRA. Our Sacramento lobbyists keep legislators informed about the providers, clinics, and community organizations in their districts that depend on MICRA and the access to quality healthcare that MICRA protects. We are prepared to defend MICRA in the legislature, at the ballot box, and in the courts. This year promises to be politically challenging and chaotic as the specter of a MICRA ballot measure hangs over both an election year for most states and the implementation of the Affordable Care Act. We are ready to meet the challenge.
The Doctor’s Advocate is published by The Doctors Company to advise and inform its members about loss prevention and insurance issues.
The guidelines suggested in this newsletter are not rules, do not constitute legal advice, and do not ensure a successful outcome. They attempt to define principles of practice for providing appropriate care. The principles are not inclusive of all proper methods of care nor exclusive of other methods reasonably directed at obtaining the same results.
The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider in light of all circumstances prevailing in the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.
The Doctor’s Advocate is published quarterly by Corporate Communications, The Doctors Company. Letters and articles, to be edited and published at the editor’s discretion, are welcome. The views expressed are those of the letter writer and do not necessarily reflect the opinion or official policy of The Doctors Company. Please sign your letters, and address them to the editor.
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