Healthcare, a Team Sport, Until The Lawsuit Happens


Everyone jumped on the Accountable Care Organization bandwagon.  It sounded so nice.  Healthcare teams roaming around, working together, making more money for themselves, saving money for the system, and getting better outcomes.  All run by the doctor, who acts as the captain.  I will let you poke holes in this fantasy but for now, let’s say things are going peachy and just the way you drew it up.  All of a sudden, one of the team members drops the ball.  The MA doesn’t call Mrs. Jones to remind her to take her meds.   The nurse is so overwhelmed and doesn’t call back Mr. Smith who has called twice that day for abdominal pain.  The NP mistakes a lymphoma for a sore throat.  Then the lawsuit hits.  Who do the lawyers go after?    Hooray, Capt. Doctor, you are the winner!  Check out this nice article in the American Medical News called Physician liability: Your team, your legal risk.  Here are some highlights:

  • “It’s almost like a football team that didn’t have a briefing or a huddle and all of a sudden you have 11 people going out on the field when precision is called for,” said O’Connell, a clinical psychologist and professor at the University of Washington School of Medicine. “That’s where a team can be held liable, because a plaintiff’s attorney can [argue] a similarly trained team would have been expected to recognize” the impending fumble and correct the problem.
  • More than ever, doctors are facing a growing push toward team-based care and delegation of duties within the medical team. But legal experts warn that such team models pose legal risks for physician leaders. For instance, physician supervisors may land in court because of actions by physician and nonphysician team members.
  • “We’ve seen an uptick in cases that involve advanced care practitioners,” said James W. Saxton, an attorney and chair of the Health Care Litigation and Risk Management Group at Stevens & Lee in Pennsylvania. “Each year, there are more claims where the supervision is not as tight as it should be. Often there’s a claim [against physicians] for failure to supervise members of the team.”
  • Failure-to-supervise claims are among the most common legal allegations stemming from failed team care, legal analysts say. Such claims arise when physician leaders allegedly err in monitoring lower-level health professionals.
  • Vicarious liability and administrative negligence are other claims to which physicians can fall victim. Vicarious liability is a legal doctrine that assigns liability for an injury to a party who did not cause the injury but who has a particular legal relationship to the negligent party. For instance, employers are frequently sued for the actions of their employees.

But your newfound ACO team is better than that, right?  Even if a case was filed, your team would come together as one unit to fight until the end.  It would be like Hoosiers but for the medical field, right?  Sorry.  Read this:

  • What makes matters worse for physicians sued under these legal theories is that team members often blame one another after a lawsuit is filed, Saxton said. Adversarial attitudes among group members lead to more time and expense for health professionals involved in the suit.
  • “The last thing you want in the courtroom is multiple defendants — all colleagues — perceived to be pointing fingers at each other,” he said. “That doesn’t help anyone, except the plaintiffs’ attorneys.”

Okay, so what have we learned here.  From past blogs I have show how the ACO theory sounded great but will turn out to be a disaster.  Not only will the savings be negligible but the hassles and bureaucratic burden will be immense.   Today I have shown how doctors will still be the target of lawsuits even as their power is being taken away.  And in the courtroom, all fingers will point to them.

I have two thoughts to end this:

  1. Maybe Obama could have put just a smidge of tort reform in his Affordable Care Act?
  2. Think twice before joining, running or being named captain of your healthcare team or ACO.  When the shit hits the fan, everyone will take one step back leaving you to take all the blame.
40050cookie-checkHealthcare, a Team Sport, Until The Lawsuit Happens