House Bill Would Bar Patients in Indiana and Elsewhere from Using Federal Physician Performance Measures as Evidence of Negligence in a Malpractice Action

A bill that was overwhelmingly passed by the United States House of Representatives in March would provide physicians in Indiana and throughout the country with additional and likely unnecessary protections against medical malpractice claims. Under the bill, patients would be prohibited from introducing evidence in a malpractice lawsuit regarding a doctor’s federal performance ratings that are now required under the Affordable Care Act, Medicaid, and Medicare. Interestingly, the language of the bill is almost identical to that advocated for by medical professionals and their insurers.

Currently, physicians are required to report information used to evaluate the quality of care they provide to federally insured patients based on a scale of zero to 100. Sample questions include how many patients receive smoking cessation counseling or become infected following a surgical procedure. Those performance measures are then used to calculate the rate at which each medical professional is paid by a federal insurer. In addition, some private insurers have transitioned towards using a performance-based payment system as well. The nation’s Secretary of Health and Human Services recently announced that her goal was to ensure all Medicare payments would be tied to the treating doctor’s quality measures within the next three years.

According to doctors, the performance measures used by federal insurers do not accurately demonstrate the quality of care received by a patient. Because of this, medical professionals and their malpractice insurers argue they should not be used to establish a doctor’s negligence. Typically, medical malpractice is proven using the generally accepted standard of care provided by similar medical professionals in the same geographic area. Doctors claim such a standard should be established using expert testimony rather than a federally mandated form that is purportedly fraught with uncertainty.

Opponents of the bill argue the proposed law makes little sense. Some claim the performance measures are akin to guidelines adopted by a medical specialty society and should be used to indicate how a reasonable physician treats his or her patients. A representative for the National Consumer Voice for Quality Long-Term Care reportedly believes the proposed law could make it more difficult for nursing home residents to demonstrate that a skilled nursing facility committed negligence. Without federal inspection reports and quality of care measures, elderly and disabled residents may have a tough time establishing that a facility failed to meet its duty of care to the harmed individual.

The U.S. Senate will purportedly consider the proposed measure soon. The American Medical Association is reportedly heavily advocating in favor of the bill. According to the group, the quality measures implemented by the federal government should not be used against doctors. If it becomes law, the bill would also block a 21 percent reduction in physician payments under Medicare.

If you were hurt or a loved one died as a result of an Indiana medical provider’s negligent act, you may have a medical malpractice claim. To discuss your right to recover damages for your loss with a skillful Merrillville personal injury attorney, do not hesitate to call the experienced lawyers at Theodoros & Rooth, P.C. today at (219) 212-2462 or contact us online.

Additional Resources:

House Provision Offers Doctors More Protection Against Malpractice Suits, by Robert Pear, New York Times