Attorneys debate whether ACA will lead to more or fewer malpractice cases

Will increase in coverage lead to more patient care, thus more lawsuits?

Risk managers and malpractice defense and plaintiffs’ attorneys are divided over whether the implementation of the Affordable Care Act (ACA) will have a direct impact on the number of malpractice cases. Some say the future will bring a frightening increase in lawsuits because more people — many of them not cooperative in their own healthcare — will enter the system. Others, however, say the ACA could result in a decrease in malpractice allegations.

Malpractice claims might increase if the ACA creates unrealistic expectations on the part of patients, says James Ron Kennedy, MHA, ARM, AIC, vice president for risk management and patient safety at Louisiana Medical Mutual Insurance Co. (LAMMICO) in Metairie. “Expectations of equal access, equal quality, and increased satisfaction at little or no cost will set the stage for unhappy customers,” Kennedy says. “When an untoward medical event occurs, even known risks previously discussed with the patient, the probability of a claim will likely increase dramatically.”

Some attorneys worry that the insurance coverage required by the ACA will result in more people seeking healthcare and that the sheer increase in patients will result in more malpractice claims. If the rate of malpractice claims per patient stayed the same, the number inevitably would rise, says James A. Comodeca, JD, a partner with the law firm of Dinsmore in Cincinnati, OH.

The increase in patients also could emphasize the healthcare system and jeopardize patient safety, he says. “While safety and the provision of quality health services will remain the top priority of all healthcare providers and organizations, I worry about the influx of 20-30 million users, as has been predicted, into the system,” he says. “Just from a statistical perspective, this influx of users can lead to issues that can result in increased claims.”

James A. Hoover, JD, a partner in the Birmingham, AL, office of the law firm Burr Forman, says the risk is increased by “the law of large numbers.” If you have one patient, the risk of being sued for malpractice is lower than if you have 100 patients, Hoover says. “I think probably there will be more claims because there will be more people getting healthcare,” he says. “There are more factors involved, of course, so it’s not really that simple. But I think in the end that the number of people will trump.”

Improving quality and patient safety can counter some of that increase in malpractice claims, Hoover says, but there is a limit to how much you can fight the math. “If you have 100 patients and typically 10% will file a medical malpractice claim, that’s 10 claims,” Hoover explains. “If you work and reduce your percentage to 5% through improved quality of care, safety, and communication, when your number of patients rises to 300, you’re still looking at more malpractice claims than before.”

If any increase, how much?

Kennedy agrees that the increase in patient care could lead to more claims, but he expects a smaller effect than some attorneys predict. (See the story on p. 99 for speculation on how the ACA could cause a decrease in claims.)

“Some increase in medical malpractice exposure will naturally occur as a result of the increase in exposure units. But this should be a relatively small increase because of the fact that poverty level patients already had coverage available via Medicaid and all uninsured patients already had access to emergent care via EMTALA,” Kennedy says. “In addition, many of the ‘new’ people covered will come from a healthy population of young people who, previous to ACA, had elected to forgo health insurance coverage.”

The number of new patients introduced to the healthcare system might be overestimated, says Kevin Troutman, JD, an attorney with the law firm of Fisher and Phillips in Houston, TX. The law already prohibits hospitals from turning away most emergency cases, so it is not as though these folks have had no access to care, he says. “If anything, they may not have been receiving adequate preventive care. This is significant because women who deliver babies after receiving little or no prenatal care tend to have more complications and bring more malpractice claims,” Troutman says. “Because hospitals are already seeing emergency cases involving patients who have not been receiving preventive or maintenance care, malpractice claims from this area seem less likely to increase.”

Still, Troutman acknowledges that increases in patient encounters might arise in the form of those who will have greater access to screenings or preventive care, if the newly insured use those services. “Many won’t, but a significant number will,” he says. “Statistically, such increases in volume are bound to increase the volume of malpractice claims.”

Increase is logical, but not certain

The ACA will stress a healthcare system that already is dealing with staff shortages and budget cuts, Comodeca points out. The influx of patients might require hiring additional physicians and staff to maintain quality care, he says. (See the story on p. 100 for advice on how risk managers can prepare for ACA implementation.)

“Until providers can better understand new staffing needs, there exists a risk of being understaffed and, as we know, understaffing can lead to potential problems,” Comodeca says. “There are studies that have shown a significant risk factor for claims arise from patient dissatisfaction, from a provider simply not spending enough time with a patient and establishing a bond. With the number of new users in the system and the looming physician shortage, the combination is concerning.”

The larger pool of potential plaintiffs also might include patients who are sicker and less compliant than the current patient population, says Martin C. Foster, JD, a partner with the law firm of Foster & Eldridge in Cambridge, MA. “You’re going to have more bad outcomes,” Foster says. “More bad outcomes mean more claims and potential lawsuits, so strictly by logic, one could rightly assume there will be a greater number of claims.”

However, Foster cautions that, although logical, such an increase might never appear. He points to similar fears in 2008 when Medicare announced it would not reimburse for costs associated with “never events” and certain hospital-acquired conditions. Many risk managers and defense attorneys feared that the number of malpractice claims would increase because Medicare’s written refusal to pay could be used as proof of malpractice.

“But that hasn’t manifested itself yet,” Foster says. “There are a number of possible reasons why, but the point is that we don’t know until everything plays out how the many factors will come together and affect claims. It’s too soon to know about the effect from the ACA, but my guess is no, we’re not going to see a considerable number of new claims.”

Sources:

James A. Comodeca, JD, Partner, Dinsmore, Cincinnati, OH. Telephone: (513) 977-8358. Email: jim.comodeca@dinsmores.com.

Martin C. Foster, JD, Partner, Foster & Eldridge, Cambridge, MA. Telephone: (617) 252-3366, Ext. 104. Email: mfoster@fosteld.com.

James A. Hoover, JD, Partner, Burr Forman, Birmingham, AL. Telephone (205) 458-5111. Email: jhoover@burr.com.

James Ron Kennedy, MHA, ARM, AIC, Vice President for Risk Management and Patient Safety, Louisiana Medical Mutual Insurance Co., Metairie. Telephone: (504) 831-3756.

Kevin Troutman, JD, Partner, Fisher & Phillips, Houston, TX. Telephone: (713) 292-0150. Email: ktroutman@laborlawyers.com.