Medicare New Directions in Quality Assurance Proceedings (1991) / Chapter Skim
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14. Legal Concerns
14. Legal Concerns
Pages 105-115
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From page 105... ...
Even having selected these three discrete issues, however, there is no question that the overarching legal concern for all players in the quality assurance arena is the issue of malpractice liability exposure, not only for those who seek to adhere to quality assurance guidelines, but also among those who participate in peer review. MALPRACTICE Over the almost 20 years of my practice, to the extent it has addressed these issues as distinct from other health law concerns, I have worked with individual physicians, institutional providers, groups of physicians, and managed care entities across the country.
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From page 106... ...
Malpractice litigation crystallizes for physicians these inherent unresolved tensions and focuses on their own imperfections, with results that they perceive as personally threatening and singularly unfair. At the same time, health care policy development is at a moment in history of intense demands
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From page 107... ...
Federal law currently provides a malpractice exemption in the PRO program. It comes directly out of the Professional Standards Review Organization law, and provides that no practitioner and no provider can be held civilly liable on account of any action taken by him in compliance with, or reliance upon, PRO norms, criteria, and standards, provided that he or the institution exercises due care (Gosfield, 1975, 1989a)
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From page 108... ...
A strategy with more laserlike precision will be based in regulation and contracts using techniques such as malpractice exemption. The absence of case law to date construing the PRO malpractice exemption ought not be seen as a strategic failure.
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From page 109... ...
Protection for Peer Review In confronting legal concerns in quality assurance by those who do accept their mandate to participate, another issue concerns the obligations and liabilities of those who participate not only in formal government sanctioned peer review but in self-regulation mechanisms as well, when they find egregious problems the review mechanism is not designed to address. When one of these quality failures is discovered, are the reviewers supposed to report this to someone?
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From page 110... ...
DUE PROCESS Within the legal environment of sanctions and interventions is the issue of due process. Many people complain about how long it takes and how difficult it is to impose penalties or other corrective action for poor quality performance.
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From page 111... ...
G GOSFIELD 111 hospital medical staff committees, trying to implement good quality assurance programs and corrective action, their primary question to me is, "We all know where the problem is, why do we have to go through all this due process?
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From page 112... ...
The continuous improvement model will have legal consequences: there will forever be a temporal parallax in the system, because the standard of performance at the time the care was rendered will not necessarily be the standard that has most recently been articulated or the standard applied at the time the behavior is judged. DATA PROTECTION AND RELEASE Another significant legal concern arising from the quality assurance strategy proposed in the IOM study emanates from the tensions between the protection of and the availability of data pertaining to performance.
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From page 113... ...
With regard to a continuous improvement model, many practitioners and providers are vitally concerned about the conclusions that can be drawn from the data necessary to the conduct of such a quality assurance program. Some will argue that the continuous improvement model inherently creates the ammunition that will feed the malpractice fire.
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From page 114... ...
Other concerns abound; they range from highly technical legal concerns such as enforcement problems in utilizing a "deeming" mechanism in the Medicare program based upon Joint Commission accreditation, to issues of the implications of antitrust exposure in quality assurance activities based on a peer-conducted approach. As the programmatic requirements for quality assurance are refined and expressed in the law, the law can either impede or advance more rapid progression toward a better system.
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From page 115... ...
Pp. 507-544 in 1989 Health Law Handbook.
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