NEW PAYMENT MODELS DO NOT CHANGE
THE STANDARD OF CARE by Daniel J. Schulte, JD, MOA Legal Counsel
Q:
I am in private practice but am also involved
in physician organizations and various programs in connection with my hospital affiliations. More and more I am hearing about “pay for performance programs” and other new payment models. They all seem to have certain things in common. They all involve data gathering/ sharing and increased scrutiny of utilization of diagnostic tools and prescriptions of drugs and other treatments. I would like to know whether participation in these new payment models affects my malpractice liability exposure. When accused of malpractice, are physicians whose diagnosis/treatment decisions that are subject to one of these new payment models judged differently than those physicians who are not?
NO.
There is only one standard of practice. All physicians alleged to have committed an act of malpractice are judged by this same standard of practice. You will be found to be liable for malpractice if you have not met this standard of practice. This standard of practice is expressed in a standard jury instruction providing that malpractice means doing something or the failure to do something that a physician of ordinary learning, judgement and skill would do under the same or similar circumstances. The exact standard of practice to be applied in any given case is one of the issues decided by the jury after hearing testimony from both the plaintiff’s and the defendant’s expert witnesses. Expert witnesses providing testimony in medical malpractice cases must meet specific statutory requirements. These requirements include that expert witnesses have a board certification that matches the board certification of the defendant physician when the claim arises from the practice of the relevant specialty. There is no jury instruction taking into account the effect any particular payment model has on or should have on
your medical decision making. Nor is there any requirement that an expert witness consider the effect that a utilization review or other payment for performance model had or should have had on what you did or should have done in a case. The influence on your practice resulting from participation in such programs very likely will not be useable in defense of a malpractice claim. Also bear in mind that the payment model you are subject to when diagnosing and treating a patient are unknown to the patient. Patient expectations when seeing you for their care do not vary from payment model to payment model. All patients expect the standard of practice to be met and that you independently exercise your professional judgement when making diagnosis and treatment decisions. The methods payors use to determine how to pay for physician services and how those payers attempt to assess the utilization of those services are changing. However, payment and utilization review changes by payors have not affected the standard of practice or the way physicians accused of malpractice will be judged.
Learn more updates at the MOA Spring Convention, May 14-17, 2020. Kerr Russell health care attorney Kathleen A. Westfall will be presenting on “Opportunities and Risks for Physicians in Emerging Models of Health Care Delivery.” Kerr Russell health care attorney and MOA legal counsel, Daniel J. Schulte, will also be presenting on contract review.
T R I A D | S P R I N G 2020
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