Five ACA-Related Malpractice Considerations for Physicians

February 2, 2014

With implementation of the health law now in full swing, many physicians are wondering how it will affect malpractice costs and claims.

Whether I’m speaking with colleagues or I'm at an industry trade meeting, inevitably the conversation turns toward the Affordable Care Act (ACA) and malpractice.

People want to know: What can we expect? Have I seen anything related to the ACA yet? What does it all mean for physicians and medical offices? 

In fact, colleagues of mine are giving a roundtable discussion on this very topic at a leading insurance conference next month.

Still an Unknown
It may surprise most physicians and other interested parties to know that the insurance industry still does not know what to expect from the ACA.  There are plenty of “doom and gloom” analysts who predict the sky is falling. Then there are those who optimistically believe that we will see claims decrease as we move forward with ACA implementation.

I’m not ready to make specific predictions. However, I think there are some important trends and insights based on experience we can and should be viewing within the framework of the ACA.

Here are the five areas physicians, risk managers, and the insurance industry should be considering when it comes to the ACA:1. Implications of clinical standards. The ACA lays out specific clinical standards providers must meet. Some attorneys note that plaintiffs may try to use these standards as the effective standard of care - or assert negligence per se if they are not followed.  However, the AMA and even some state legislatures see potential problems with this interpretation. We’ll have to watch to see how standards evolve and how medical associations and physicians react if such questionable standards are brought into cases.

2. Claims based on miscommunication. Technology can be a wonderful tool. But as we’ve noted in past postings, when it is not supported by one-on-one communication, it can create more problems than it solves. Physicians must be diligent in the patient hand-off phase, and they must not become overly reliant on EHRs - sometimes a personal conversation is the best way to communicate.

3. Claims based on the misconduct of others. Physicians working with larger organizations, including hospital systems and ACOs, are increasingly being held responsible for the actions of non-physicians providing patient care. Communication and education of all staff will therefore become increasingly important.

4. Increasing patient caseloads will tax already over-burdened doctors. Millions of Americans now have access to health coverage. As these patients seek medical care, many medical offices may become further overburdened - not just with the sheer number of patients - but also with patients who may have complex illnesses and/or who have not had access to routine healthcare, meaning they will need additional education and support. The industry will survive this change - but it will need to be hyper vigilant in the short term.

5. Physician demographics are changing. We have a shortage of physicians; many of the physicians in practice today are nearing retirement; and within the next few years we’ll have many new physicians entering the market. Older physicians have experience, but many are not yet familiar with usage of EHRs or, for those who are used to independent practice, with the protocols and systems of working with large institutions that may have recently acquired their practices. Younger physicians have the technical and operational skills, but not yet the clinical experience. We may see an increase in medical errors based on this changing demographic.

Is this a list of every possible area of concern? Not by a long shot. But it covers some we think are worth monitoring.  Smart physicians will tailor their risk management approaches to address specific concerns like these. Of course, the most important reason to address these issues is to provide the best possible patient care and outcomes.

It will be an interesting few years for the industry. However, physicians who maintain their commitment to patients and great care will navigate their way through the ACA issues. They will survive and even thrive. That is my prediction and I’m sticking to it.