House Provision Offers Doctors More Protection Against Malpractice Suits

WASHINGTON — A little-noticed provision of a bill passed by the House of Representatives with overwhelming bipartisan support would provide doctors new protections against medical malpractice lawsuits.

The bill, which requires the government to measure the quality of care that doctors provide and rate their performance on a scale of zero to 100, protects doctors by stipulating that the quality-of-care standards used in federal health programs — Medicare, Medicaid and the Affordable Care Act — cannot be used in malpractice cases.

The provision is nearly identical to legislative language recommended by doctors and their insurance companies. They contend that federal standards and guidelines do not accurately reflect the standard of care and should not be used to show negligence by a doctor or a hospital.

Medicare, Medicaid and private insurers increasingly require doctors to report data that can be used to assess the quality of care. They then evaluate and pay them based on their performance.

Medicare, for example, asks doctors: What percentage of tobacco users receive counseling on how to stop smoking? What percentage of patients develop infections after surgery? What percentage of diabetes patients have blood sugar levels in the normal range?

The government scrutiny of doctors is only expected to increase. Sylvia Mathews Burwell, the secretary of health and human services, recently announced an ambitious goal, calling for “virtually all Medicare fee-for-service payments to be tied to quality and value” within three years.

But doctors are now concerned that the proliferation of quality metrics, some mandated by the Affordable Care Act, poses unintended legal risks to health care providers, and that patients and their lawyers can use such data in court to show that providers were negligent.

That concern is not far-fetched. The website of a New Mexico law firm points consumers to a Medicare list of preventable injuries and illnesses — caused, for example, by transfusions of the wrong blood type or foreign objects left in patients during surgery.

“If you or a loved one has suffered serious personal injury or wrongful death as a result of one of the medical errors on this list,” the law firm says, “you may very well have a medical malpractice claim.”

Brian K. Atchinson, president of the Physician Insurers Association of America, a trade group for insurers, said the bill would “eliminate the uncertainty” about the use of federal guidelines and standards to establish the legal liability of doctors, nurses and hospitals. It would, he said, “simply preserve the status quo with respect to medical professional liability.”

But Tom Baker, a professor and an expert on insurance law at the University of Pennsylvania, said the provision of the bill barring lawsuits based on federal guidelines “does not make any sense.”

“Why wouldn’t you want to take these guidelines into consideration?” Mr. Baker asked. “They indicate what a reasonable doctor does and should do, just like guidelines adopted by a medical specialty society.”

Consumer advocates and plaintiffs’ lawyers also expressed concerns.

Kelly Bagby, a lawyer at AARP, the lobby for older Americans, said the malpractice provision was “very troubling.” The National Consumer Voice for Quality Long-Term Care, a consumer group, said the provision would make it more difficult for nursing home residents to vindicate their rights and to establish negligence by showing that a home had violated federal health and safety standards.

James L. Wilkes II, a Florida plaintiffs’ lawyer, said he often used inspection reports showing violations of federal standards in lawsuits against nursing homes and their medical directors. When a nursing home violates federal standards and a resident is injured, Mr. Wilkes said, the patient should be allowed to cite the violation in court, to help demonstrate that the institution did not meet its “duty of care.”

But Harry M. Dasinger, a vice president of the Doctors Company, which describes itself as the nation’s largest physician-owned medical malpractice insurer, said that the standard of care should be established by the testimony of experts, not by reference to federal guidelines.

“What a doctor thinks is best for a particular patient is not necessarily what the government thinks is right for groups of patients with that condition,” Mr. Dasinger said.

Since 2009, the Doctors Company has been pushing for legislation that would prevent federal payment guidelines from being used as evidence of negligence. The House-passed version of the health care overhaul in 2009 included such language, but it was dropped from the Senate version that eventually became law.

The main goal of the House Medicare bill, cited by Speaker John A. Boehner as one of his most significant legislative accomplishments, is to establish a new way of paying doctors.

The bill, approved in the House last week by a vote of 392 to 37, is considered an urgent priority for Congress. It would block a 21 percent cut in Medicare doctors’ fees scheduled to take effect in April. The Senate plans to take up the bill when it returns on April 13.

Representative Michael C. Burgess, Republican of Texas and chief sponsor of the bill, said the new payment formula would help doctors “get out from under the constant threat of payment cuts” while shifting to a new payment system based on “quality measures.”

“While taking these important steps toward ensuring quality care,” Mr. Burgess said, “the bill specifically states that these quality measures are not creating a federal right of action or a legal standard of care.”

The American Medical Association has mobilized a campaign to secure passage of the Medicare bill, including the section on medical malpractice. President Obama has endorsed the bill.

Dr. Robert M. Wah, president of the American Medical Association, said that federal guidelines and quality criteria “should not be exploited to invent new legal actions against physicians.”

The Affordable Care Act established a number of “value-based purchasing programs.”