Many EPs Concerned About Risk of Med/Mal Suits Under ACA
Growing pressure on EPs to move patients through faster
Increased liability risks are top of mind for many emergency physicians (EPs) due to the possibility of increased volumes under the Affordable Care Act (ACA).
The average emergency department (ED) can expect about a 10% census increase, estimates Robert Broida, MD, FACEP, COO of Physicians Specialty Limited Risk Retention Group, a captive professional liability insurance company serving the Canton, OH-based Emergency Medicine Physicians medical group.
"If you give people a health care card, they will likely use it. If 30 million new cards go out, I would expect at least 10 million new ED visits," he says.
Broida adds, "To the extent that EDs do not have the excess capacity to care for that type of increased load, it will increase liability. System issues such as understaffing, delayed care, and boarding all increase risk."
When ED volume goes up, things fall through the cracks because there is simply not enough time to attend to everything , says Michael Blaivas, MD, FACEP, professor of emergency medicine at University of South Carolina Medical School and an ED physician at St. Francis Hospital in Columbus, GA.
From 2005 to 2010, the number of visits to California EDs rose by 13.2%, from 5.4 million to 6.1 million annually, according to a recent study.1 A 35% increase in the number of patients insured through the state’s Medicaid program drove this rise, says Renee Hsia, MD, the study’s lead author and associate professor in the Department of Emergency Medicine at University of California San Francisco.
"Many people make the assumption that once someone is insured, they will automatically get access to a primary care physician," says Hsia. "While this is certainly the hope, the reality is that many patients who are already on Medicaid have difficulty finding access to both primary care doctors and specialists."
Previous research has shown that more than 30% of physicians nationwide are unwilling to take on new Medicaid patients. "Newly insured Medicaid patients may likely experience similar, if not even more severe, problems," says Hsia. "Even more people are now covered,’ and thereby placing further demands on an oversaturated system."
It may become necessary for EDs to hire additional staff in order to comply with some of the anticipated changes under the ACA, such as document management and providing "patient-centered care," says Kathleen M. Roman, MS, a Greenfield, IN-based consultant and former assistant vice president of risk management education services at The Medical Protective Company.
"If this is the case, both the ED staff and hospital staff should be wary of dumbing down’ job descriptions, recruiting, policies, training programs, and employee oversight," she says. "It is missteps in these areas that may expose patients to risk of injury — and physicians to risk of litigation."
As to whether EPs will be held liable — or the organizations with which they are affiliated — Roman says "only time — and ensuing case law — will tell."
System-wide Solutions Needed
It is important not to place blame on patients for seeking care in the ED, says Hsia, as systemwide solutions are needed to address the problem of access for all patients.
"This includes finding creative ways to convince primary care physicians and specialists to open their offices up to Medicaid patients," she says.
Erin C. Fuse Brown, JD, MPH, assistant professor of law at Georgia State University College of Law in Atlanta, says, "The conventional account is that in states that expand Medicaid, EDs will see an increase in volume because Medicaid populations tend to use the ED more than other subgroups."
This effect may be offset, though, due to increased emphasis and resources for primary care and community-based clinics under the ACA. "Also, the expansion population is different in many ways from the existing Medicaid population," says Fuse Brown. "Their utilization patterns may differ as well."
However, hospitals in states electing not to expand Medicaid will still see significant amounts of uninsured and indigent patients at a time when disproportionate share payments under Medicare and Medicaid are being cut. "That will cause a significant crunch for safety net hospitals and EDs," says Fuse Brown, adding that EDs in states that expand Medicaid will likely be better off than states that do not expand Medicaid.
"In sum, some of the ACA’s provisions are good for emergency care providers, some may strain providers, and a lot depends on your state and local characteristics," says Fuse Brown.
EPs have direct control of their own staffing, says Broida, and need to provide adequate coverage.
"They should also attempt to educate and work with their hospitals to promote adequate nursing, ancillary, and housekeeping staffing for the expected patient influx," says Broida.
Operational issues, such as ancillary turnaround times, admission process, boarding, and psychiatric placement should be optimized as much as possible, says Broida, in order to "debulk" the ED.
"Primary or urgent care clinics for non-urgent patients, telemedicine services, and follow-up clinics all will have a place," says Broida. "Anything which serves to promote speedy throughput and outflow will reduce risk."
Liability Exposure Not Considered
Regardless of whether the ACA actually increases ED volumes, Blaivas says that a growing focus on metrics and throughput is already increasing legal risks for EPs.
"Many EDs, especially ones run by large corporate groups, are heavily focused on metrics," he says. "They will have no choice but to try to churn patients through even faster. This is when things are missed."
Blaivas says that after one large emergency medicine group urged its providers to complete workups in the ED more quickly, patients were being sent up without CTs completed, no antibiotics given, no real diagnosis, and other critical procedures not done. "This led to bad outcomes, and now the corporate group is having to backpedal to increase safety," he says.
EPs should be keenly aware of proposed quality measures that could impact their practice, advises Broida. "Many of these are designed to minimize cost as their primary goal," he says. "Increased liability exposure is frequently not even considered."
The concern is that while the payers are saving money, EPs are likely to end up paying more for liability claims.
"There will be a few win-win situations where cost savings are possible with little or no adverse impact on patient outcome," says Broida. "But these are few and far between."
Broida says the best risk-reduction strategy is for EPs to adhere to published, evidence-based treatment guidelines and rigorously document any deviations.
"Even if there is an adverse outcome, the fact that the physician used the guideline appropriately will do much to defuse a jury otherwise sympathetic to the plaintiff," says Broida.
Blaivas says that to reduce legal risks, EPs should avoid being caught up by pressure to move patients through as fast as possible. " If you want to protect yourself and your patient, think about what is right for the patient — not the group or the hospital," he says. "This is much easier said than done, however."
Blaivas adds, though, that a significant number of errors and oversights that occur are actually due to poor organization and multitasking on the part of EPs themselves. "Keeping charts, notes, and check box reminders of what needs to occur on a particular patient will often help," he says.
Additionally, if volume surges occur mostly in patients with minor illnesses, it might be helpful to send an EP out front to triage and even make disposition decisions right from the waiting room, says Blaivas.
"Ordering tests from triage is helpful, but only when done thoughtfully and efficiently," he says. "It takes a trained provider to accomplish this, not just a shotgun’ approach, where every box is checked for every test, many of them not relevant."
Blaivas says he expects EDs to see a volume surge under the ACA of mostly minor illnesses and chronic complaints. "The tough decision will have to be made to see patients that require emergency care first, not just everyone who might fill out a patient satisfaction form," he says.
"There will continue to be two classes of patients — those who need to be in the ED and those who do not." adds Blaivas. "Continue to focus on those who do."
Jason Hockenberry, PhD, assistant professor in the Department of Health Policy and Management at Emory University in Atlanta, GA, says that essentially, the ACA has instituted quality metrics, and these metrics are supposed to be based on evidence.
"As such, these metrics could shift standards of care.’As a result, physicians are at risk if they are practicing outside of these standards," he says.
As has always been the case, EPs need to stay abreast of new evidence, and to integrate this evidence into their care processes, adds Hockenberry. "One way to do this is to have condition-specific treatment protocols in the ED, which are continuously reviewed and updated," he says.
Less Risk-averse Care
The ACA promotes greater quality and cost efficiency through hospital payment incentives with the Value-Based Purchasing Program. "To the extent that hospitals encourage or force physicians into more risky behavior, malpractice liability will increase," says Broida.
A simple example is the EP trying to admit a patient via the hospitalist. Since the hospitalist is pressured to admit fewer patients, it creates a situation in which the EP must discharge patients that formerly would have been admitted.
"Unless 100% of those discharged patients did not actually require admission, we will have some percentage of patients needing admission who are inappropriately sent back out into the community," says Broida. "This will certainly increase liability."
The ACA also promotes greater quality and cost efficiency through physician payment incentives and penalties with the Value-Based Payment Modifier. "To the extent that these payment adjustments encourage care that is less risk-adverse, liability will likely increase," says Broida. "Here, the devil is in the details."
If avoidable ancillary testing for chest pain is targeted and fewer routine coagulation studies are ordered, it is likely that few patients will be harmed, says Broida.
"However, if avoidable admissions for chest pain are targeted and fewer chest pain patients are admitted, it is likely that mortality will increase above the current 2% to 3% miss rate," he says. "Significant liability claims will follow."
Broida says that to mitigate the risk of inappropriate ED discharge, EPs should be diligent in assuring that hospitalists or other admitting physicians personally evaluate patients they refuse to admit.
"It is always better to have two policies on the settlement table, rather than just one," he says.
- Hsia RY, Brownell J, Wilson S, et al. Trends in adult emergency department visits in California by insurance status, 2005-2010. JAMA 2013;310(11):1181-1183.
For more information, contact:
- Kathleen M. Roman, MS, Roman Empire Consulting, Greenfield, IN. Phone: (317) 326-7543. E-mail: firstname.lastname@example.org.
- Michael Blaivas, MD, RDMS, Vice President, Emergency Ultrasound Consultants, Bear, DE. Phone: (302) 832-9054. E-mail: email@example.com.
- Robert Broida, MD, FACEP, COO, Physicians Specialty Limited Risk Retention Group, Emergency Medicine Physicians, Canton, OH. Phone: (330) 493-4443. E-mail: RBroida@emp.com.
- Erin C. Fuse Brown, JD, MPH, Assistant Professor of Law, Georgia State University College of Law, Atlanta, GA. Phone: (404) 413-9180. E-mail: firstname.lastname@example.org.
- Jason Hockenberry, PhD, Assistant Professor, Department of Health Policy and Management, Emory University, Atlanta, GA. Phone: (404) 727-7416. E-mail: email@example.com.
- Renee Hsia, MD, Associate Professor, Department of Emergency Medicine, University of California — San Francisco. Phone: (415) 206-4612. E-mail: firstname.lastname@example.org.