What do you think about the role and success of tort law in promoting high quality health care? Does it help to deter errors? If not, why not?  What are some of the alternatives to our tort law system to promote high quality health care?

250 word count

http://www.atra.org/

https://www.hg.org/legal-articles/what-is-tort-reform-35441

https://www.pbs.org/newshour/health/could-malpractice-reform-save-the-us-health-care-system

discussion boardHealth policy urgent

Chapter 12
Healthcare Quality
Policy and Law

Chapter Overview
(1 of 2)
Discusses licensure and accreditation in the context of healthcare quality
Describes the scope and causes of medical errors
Describes the meaning and evolution of the medical professional standard of care
Identifies and explains certain state-level legal theories under which healthcare professionals and entities can be held liable for medical negligence

Chapter Overview
(2 of 2)
Explains how federal employee benefits law often preempts medical negligence lawsuits against insurers and managed care organizations
Describes recent efforts to measure and incentivize high-quality health care

Quality Control Through
Licensing and Accreditation
(1 of 3)
Licensing of healthcare professionals and institutions is an important function of state law, as it filters out those who may not have the requisite knowledge or skills to practice medicine
State licensure laws define the qualifications required to become licensed and the standards that must be met for purposes of maintaining and renewing licenses

Quality Control Through
Licensing and Accreditation
(2 of 3)
Historically, licensing has been used in the promotion of healthcare quality in only the bluntest sense. This is because the only method by which to promote quality through licensure is the granting or denial of the license to practice medicine—no real middle ground.
Private professional and industry ethical and practice standards exist, though their effect on day-to-day quality is debatable.
State licensing schemes were designed not with healthcare quality per se in mind, but rather with an eye toward protecting the medical professions from unscrupulous or incompetent providers and bad publicity.

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Quality Control Through
Licensing and Accreditation
(3 of 3)
Licensure plays an important role in defining the permissible “scope of practice” of the various types of healthcare providers.
It is one thing for state legislators to define the meaning of practice for various broad medical fields, but quite another for legislators to define, for example, the lawful activities of doctors as compared to physician assistants as compared to nurses.

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Medical Errors
(1 of 3)
Although medical errors are not a new problem, framing the issue as a public health problem is a relatively new phenomenon.
Overall, more people die each year from medical errors than from motor vehicle accidents, breast cancer, or AIDS.

Medical Errors
(2 of 3)
Causes of medical errors may include the failure to complete an intended medical course of action, implementation of the wrong course of action, use of faulty equipment or products in effectuating a course of action, failure to stay abreast of one’s field of medical practice, health professional inattentiveness, the fact that optimal treatments for many illnesses are not yet known, and the culture of medicine itself.

Medical Errors
(3 of 3)
Policy makers have begun shifting their attention to medical error reforms that are less reactive and more centered on error prevention and patient safety improvement.
Two primary objectives of these reforms:
Redesign healthcare delivery methods and structures to limit the likelihood of human error.
Prepare for inevitable errors that will occur in healthcare delivery regardless of the amount and types of precautions taken.

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Promoting Healthcare Quality Through the Standard of Care
(1 of 3)
The professional standard of care is the legal standard used in medical negligence cases to determine whether health professionals and entities have adequately discharged their responsibility to provide reasonable care to their patients.
A patient seeking to hold a health professional responsible for substandard care or treatment must demonstrate (1) the appropriate standard of care,
(2) a breach of that standard by the defendant, (3) measurable damages, and (4) a causal link between the defendant’s breach and the patient’s injury.

Promoting Healthcare Quality Through the Standard of Care
(2 of 3)
The standard has its origins in 18th-century English common law.
Courts in England established that a patient looking to hold a physician legally accountable for substandard care had to prove either that the doctor violated the customs of his own profession as determined by others within the profession (i.e., the “professional custom rule”) or that the testimony provided on behalf of a patient as to whether a physician’s actions met the standard of care could only come from physicians who practiced within the same or similar locality as the physician on trial (i.e., the “locality rule”).

Promoting Healthcare Quality Through the Standard of Care
(3 of 3)
Over time, the standard was updated by courts.
Courts now consider a range of relevant evidence in addition to custom and today determine whether a health professional’s treatment of a particular patient rose to the standard of care is whether it was reasonable given the “totality of circumstances.”
A physician’s actions are now measured objectively against those of a reasonably prudent and competent practitioner under similar circumstances, not against the actions of physicians who practice within a particular defendant’s locality.

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Tort Liability of Hospitals, Insurers, and Managed Care Organizations
(1 of 3)
Vicarious liability—where one party can be held legally accountable for the actions of another party based solely on the type of relationship existing between the two parties
Premised on principles of “agency” law, under which one party to a relationship effectively serves as an agent of another party

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Tort Liability of Hospitals, Insurers, and Managed Care Organizations
(2 of 3)
The general rule is that employers are not vicariously liable for the improper actions of independent contractors; however, courts have developed exceptions to this rule—e.g., actual agency and apparent agency—that are more concerned with the scope of a relationship than with the formal characterization of the relationship as determined by the parties.

Tort Liability of Hospitals, Insurers, and Managed Care Organizations
(3 of 3)
Corporate liability—holds entities accountable for their own “institutional” acts or omissions when their negligence causes or contributes to an injury
Several general areas give rise to litigation around entities’ direct quality-of-care duties to patients:
Failure to screen out incompetent providers
Failure to maintain high-quality practice standards
Failure to take adequate action against clinicians whose practices fall below accepted standards
Failure to maintain proper equipment and supplies

Federal Preemption of State Liability Laws Under ERISA
(1 of 4)
ERISA was established in 1974 to protect the employee pension system from employer fraud.
However, the law was drafted in such a way as to extend to all employee benefits offered by ERISA-covered employers, including health benefits.

Federal Preemption of State Liability Laws Under ERISA
(2 of 4)
ERISA implicates two different types of preemption.
– Conflict preemption—when specific provisions of state law clearly conflict with federal law, in which case the state law is superseded
– Field preemption—when courts interpret federal law to occupy an entire field of law (e.g., employee benefit law), irrespective of whether there are any conflicting state law provisions

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Federal Preemption of State Liability Laws Under ERISA
(3 of 4)
ERISA’s conflict preemption provisions (preemption clause, insurance saving clause, and deemer clause) are more sweeping than any other federal preemption provisions and have engendered an enormous amount of litigation.

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Federal Preemption of State Liability Laws Under ERISA
(4 of 4)
The U.S. Supreme Court has interpreted ERISA’s field preemption provisions to be the exclusive remedy for negligent administration of an employee benefit plan covered by ERISA.
– This means that all other state remedies generally available to individuals to remedy corporate negligence are preempted (thus not available) to employees whose health benefits are provided through an ERISA-covered plan.

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Measuring and Incentivizing
Healthcare Quality
(1 of 4)
As the single largest payer in the U.S. health system, Medicare is a major national driver of policy in other markets (both public and private). Therefore, how the Medicare program addresses issues pertaining to quality is important not only to Medicare beneficiaries and providers but also to other purchasers/insurers whose policies and procedures are often driven by Medicare policy.

Measuring and Incentivizing
Healthcare Quality
(2 of 4)
All payment systems (public and private) tend to incentivize something, whether indiscriminate increases in the volume of treatments and services or indiscriminate reductions in volume.
Whatever the payment arrangement, the challenge is to promote both quality and value while also apportioning financial risk appropriately.

Measuring and Incentivizing
Healthcare Quality
(3 of 4)
Congress has passed a series of laws (including the ACA) designed to move the Medicare program from a passive purchaser of volume-based health care to an active purchaser of high-quality, high-value health care.
The ACA’s vision for improving quality focuses on:
Quality measure development
Quality measurement (including payment incentives)
Public reporting
Value-based purchasing

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Measuring and Incentivizing
Healthcare Quality
(4 of 4)
The ACA also requires the development of a National Quality Strategy to improve the delivery of healthcare services, patient health outcomes, and population health.

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