New CMS rules could make MDs less likely to admit 'Robust' documentation needed to support decision
The 2014 Centers for Medicare & Medicaid Services (CMS) Inpatient Prospective Payment System rules present challenges to the independent medical-decision making of physicians, according to Cori Casey Turner, JD, a partner at Husch Blackwell in Kansas City, MO.
Some physicians might be reluctant to admit a patient as an inpatient if they believe that the patient's stay might not span two midnights, she explains.
"The determination regarding whether to admit a patient may no longer truly reflect the acuity of care a patient needs; but rather, also take into account the anticipated duration of the inpatient stay," says Turner.
In situations in which a patient is acute, but is likely to respond quickly once admitted, the Medicare rule could discourage physicians to admit a patient even if that is the best course of treatment. "This fact could potentially be used by plaintiff's counsel as evidence of professional negligence," says Turner.
Plaintiff attorneys might look for cases in which a patient was not admitted, but instead was treated as an outpatient, says Joseph P. McMenamin, MD, JD, FCLM, a Richmond, VA-based healthcare attorney and former practicing emergency physician. "They may argue that the reason the patient wasn't admitted is that the physician was trying to help the hospital, which didn't want to be audited, and withheld care and managed the patient as though outpatient management was sufficient when in reality it wasn't," he says.
This argument might not be successful, however, says McMenamin, since "the distinction between outpatient and inpatient management is considerably thinner than it once was."
Patients admitted to observation typically receive the same level of care they would as inpatients, he explains. "The only difference is the status that the hospital or doctor has assigned; not the intensity or complexity of the care," says McMenamin.
To minimize malpractice liability, physicians should be familiar with hospital policies regarding hospital admissions, says Wakaba Tessier, JD, an attorney at Husch Blackwell.
"Most hospital admission policies take into consideration InterQual evidence-based clinical guidelines or similar clinical criteria which support the appropriateness of care," says Tessier.
Accordingly, ensuring that a physician's practices are consistent with hospital policy and maintaining robust documentation of admission and discharge decisions might decrease the risk associated with medical malpractice suits, she says.
Because the new CMS rules require a physician to sign a statement attesting that the patient will require two overnights for a full admission, it's possible that physicians might face civil liability if CMS later determines that the attestations were made in error.
"However, the risk of liability is significantly less if the error is inadvertent and not intentional," says Tessier. "Ultimately, physicians are responsible for the care of their patients."
CMS has stated that it will evaluate the physician's expectation based on the information available to the admitting practitioner at the time of the admission.
"Accordingly, admitting a patient that could benefit from inpatient treatment that the physician suspects may not ultimately span two midnights should be supported by robust medical record documentation highlighting the medical necessity of the inpatient admission," says Tessier.