A provision to H.R. 2, the Medicare Access and CHIP Reauthorization Act, passed by the House of Representatives in March has provided doctors with unwarranted protection against medical malpractice claims. In an attempt to distinguish between the quality based payment plan regulations of government programs and medical liability standards, the legislation stipulates that the federal health care guidelines applicable to Medicare, Medicaid and those delineated under the Affordable Health Care Act cannot be construed to establish a legal standard of care upon which medical malpractice claims can be based.

In government health care programs, standards are established based on a system called quality metrics under which data provided by doctors and medical practitioners is used to assess the quality of care provided, on the basis of which payments are then made to the doctors. Let’s take a moment to recognize the incongruity of a government which, having given quality prime importance, then proceeds to base its very evaluation of the matter on quantifiable data. In the case that the Sustainable Growth Rate (SGR) legislation is enacted, this particular provision would prevent a plaintiff from being able to use a doctor’s performance in a federal health program as the basis for a medical malpractice lawsuit. But considering that these are fairly reasonable guidelines that delineate the components of an acceptable standard of care, why should their respective adherence or violation not be considered in a medical malpractice case?

Members of the medical community argue that these standards do not accurately reflect the standard of care and pose unnecessary legal risks to the careers of medical personnel. Additionally, they argue that such cases should be reviewed by panels composed of medical experts. What needs to be understood is that in this particular scenario, government intervention is warranted and a system of accountability needs to be in place that is instituted by a foreign, objective body as opposed to an internal review committee. In no way would the integrity of the medical profession be threatened by this reform, in fact, it is nothing but a testament to the importance of the work done by doctors and the need to ensure that regulations and standards are in place since it is often, quite literally, a matter of life and death. It is also imperative that there be a uniform set of standards and regulations in place, for it not only sets a poor precedent of the writ of the state if dual standards are existent but its absence also calls in to question the effectiveness and relevance of the standards of quality instituted in federal healthcare programs since they are not applied universally.

It is integral to understand that these federal standards were not formed in a vacuum, they too, are based on some form of logical reasoning and do take in to account input from experts and have access to the same knowledge that is also available to, and often provided by, these very experts. Thus, the credibility of these standards is not in contention. Moreover, even if the volume of claims, following the adherence to these federal standards, were to increase, they would only be successful if they adequately fulfilled the predetermined criteria for medical malpractice cases. Consequently, we see that the process will not in any way change but there will be increased access to relevant evidence which is an essential aspect of preserving justice in the system.

Proponents of this provision argue that exposing physicians to liability is not the correct method for encouraging new strategies and improvements in the medical arena. However, they failto recognize that that these improvements need to be subject to some form of external, universally acceptable standard; and the best embodiment of this requirement tends to be the federal health care guidelines stipulated by the state. Additionally, encouraging doctors to provide quality care is the very aim of the quality metrics-based payment initiatives, and there is no such reason that this improvement in the medical profession cannot be achieved while also simultaneously instituting the pre-existing, preventive, federal healthcare guidelines.

Medical malpractice remains a particularly important facet of the law considering it relates directly to an individual’s body – a determination of their physical manifestation and a sanctuary for their soul. Legislation should aim to provide sufficient safeguards against medical malpractice so that victims can obtain restitution and this is exactly why, the provision under discussion is problematic.